Appeal No. 2001-1907 Page 6
Application No. 08/694,315
specification does not present data acquired from humans, without specific
reasons and evidence why the mouse models are not reasonably predictive of
performance of the method in humans, does not support the conclusion that the
method claims at issue are not enabled throughout their scope. See In re Brana,
With respect to the examiner’s concerns that the specification does not
enable the use of the method to treat diseases that do not involve an
autoimmune component in which eosinophilia is implicated in the pathology of
the immunodeficiency, the specification teaches that the histamine activated
immunoglobulin demonstrates therapeutic efficacy against diseases which have
an autoimmune basis, as well as for eosinophilia. See Specification, page 19.
Thus, based on the teachings of the specification, the skilled artisan would
understand that the claimed method excludes those diseases that do not involve
an autoimmune component, or those diseases in which eosinophilia is not
implicated.
Because, as discussed above, the rejection fails to set forth a prima facie
case that the specification fails to enable the method claims at issue throughout
their scope, it is reversed.
2. Rejections over the prior art
Claims 1-2, 5-16 and 25-27 stand rejected under 35 U.S.C. § 103(a) as
being obvious over the combination of Yoshii I, Yoshii II, Naiki, Getlik, Takashi,
McMichael and Wood. Moreover, as the issues and arguments are the same for
the rejection of claims 23, 26 and 27 under the judicially created doctrine of
obviousness-type double patenting over the combination of claims 1-11 of U.S.
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