Appeal No. 94-3007
Application 07/809,039
but take a closer look at the examiner’s attempts to explain
the rejection. The examiner states (Examiner’s Answer, page
4):
The compounds of Debono are similar to each of the
claimed compounds in having the known peptide backbone
structure of the cyclized amino acid residues of the
parent A-21978C of formula Trp-Asn-Asp-Thr-Gly-Orn-
Asp-Ala-Asp-Gly-Ser-3MG-OL-Kyn except for the amino
acid residue, Asp, at the ninth position of the claimed
compound 34 which is a beta . . . isomer of aspartyl of
the prior art alpha . . . aspartyl. It would have been
obvious to one of ordinary skill in the art at the time
the invention was made to substitute the amino acid
residue . . . [alpha]-Asp of Debono with its isomer,
. . .[beta]-Asp with a reasonable expectation that said
. . .[beta]-isomer would exhibit a similar antibiotic
property as its . . . [alpha]-counterpart, as suggested
by Debono supra. Further, due to the close structural
similarity and closeness of relationship of the isomers
it is expected that they would possess very close
properties . . . .
We find in the examiner’s statement of the rejection little or
no basis for obviousness other than the structural similarity
between the old and new compounds to explain why the A-21978C
compounds Debono describes would have led persons having
ordinary skill in the art (1) to make appellants’ new
compounds, and (2) to reasonably expect the new compounds also
to be useful as antibacterial agents or as intermediates to
antibacterial agents. We repeat the last sentence of the
examiner’s statement:
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