Appeal No. 1999-1273
Application 08/709,916
Domigan specifically teaches that chlorotyrosine will be a specific marker for the
production of hypochlorous acid in vivo, for the involvement of myeloperoxidase in
inflammatory tissue damage, and that 3-chlorotyrosine is the likely isomer which is formed.
Answer, pages 4-5.
Appellant argues 1) that the examiner’s position is not supported by any facts of
record or scientific reasoning and thus the examiner has not presented a prima facie case
of obviousness, 2) the examiner has engaged in hindsight reconstruction of appellant’s
invention, and 3) the cited references fail to suggest or identify
3-chlorotyrosine as being a diagnostic for atherosclerosis and do not disclose elevated
level of 10 to 100-fold greater of 3-chlorotyrosine than a normal subject. Brief, pages 8-
11. For the reasons herein, we agree with the appellant that the examiner has not
established a prima facie case of obviousness on the record before us.
At best, the cited references establish that myeloperoxidase is a catalyst for
lipoprotein oxidation and is expressed by human atherosclerotic lesions. The cited
references also would appear to establish that byproducts of myeloperoxidase are
hypochlorous acid and tyrosyl radicals. The examiner has not established with sufficient
evidence, and we do not find, that the cited references provide a direct correlation
between the presence of elevated levels of 3-chlorotyrosine and the atherosclerotic
disease condition.
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