Ex parte ALA FISHMAN et al.
Appeal 2009-1258
Application 10/096,840
Technology Center 1600
Decided: March 20, 2009
Claims at issue:
22. A chimeric protein for therapy of allergic responses by targeted elimination of FCεRI expressing cells wherein the chimeric protein comprises a cell targeting moiety consisting of an Fc region of an IgE molecule genetically fused to a cell killing moiety.
29. A pharmaceutical composition comprising the chimeric protein of claim 22, wherein said composition is in a form suitable for injection, intra-nasal, intra-thecal, intra-dermal, trans-dermal, inhalation, topical application, oral administration, sustained release, or ethereal administration.
43. A chimeric protein for therapy of allergic responses by targeted elimination of FCεRI expressing cells wherein the chimeric protein comprises a cell targeting moiety consisting of an Fc region of an IgE molecule genetically fused to a cell killing moiety, and the chimeric protein does not cause degranulation of target cells.
Examiner rejected claims as lacking written description because the specification "does not reasonably provide a written description of any and all chimeric protein comprising any cell targeting moiety consisting of an Fc region of any IgE molecule genetically fused to any cell killing moiety as set forth in claims." The Board following Capon v. Eshhar and Falkner v. Inglis reversed the Examiner.
"Simply stated, there is no evidence on this record to support a conclusion that the cell killing and cell targeting moieties set forth in Appellants’ claims were not known to those of ordinary skill in this art at the time the invention was made. It is unnecessary for the Specification to provide a description of proteins which are already known in the prior art. Capon, 418 F.3d at 1357-58."
The Board affirmed that the claims were obvious, in part, because the appellants mischaracterized the prior art (according to the Board) and, therefore, the contention was not persuasive.
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