Appeal No. 2002-1815 Page 2
Application No. 09/401,063
The references relied upon by the examiner are:
Joyce et al. (Joyce) 5,807,718 Sep. 15, 1998
Yamazaki et al. (Yamazaki), “Cleavage of glioma-Specific Aberrant mRNA of
Epidermal growth factor receptor (EGFR) by Ribozyme in Vitro,” Proceedings of
the American Association for Cancer Research Annual Meeting, Vol. 36,
pp. 429, Abstract No. 2556 (1995)
Rossi, “Controlled Targeted, Intracellular Expression of Ribozymes: Progress
and Problems,” Tibtech, Vol. 13, pp. 301-06 (1995)
Usman et al. (Usman), “Design, Synthesis, and Function of Therapeutic
Hammerhead Ribozymes,” Nucleic Acids and Molecular Biology,
Vol. 19, pp. 243-64 (1996)
Ortigāo, et al. (Ortigāo), “Antisense Effect of Oligonucleotides with Inverted
Terminal Internucleotidic Linkages: A Minimal Modification Protecting Against
Nucleolytic Degradation,” Antisense Research and Development,”
Vol. 2, pp. 129-46 (1992)
GROUND OF REJECTION
Claims 27-34, 40, 42-46 and 48-53 stand rejected under 35 U.S.C. § 103
as obvious over Yamazaki in view of Rossi, Usman, Joyce and Ortigāo.
We reverse.
DISCUSSION
Obviousness is a question of law supported by underlying facts.
In re Gartside, 203 F.3d 1305, 1316, 53 USPQ2d 1769, 1776 (Fed. Cir. 2000).
What the prior art teaches and whether it teaches away from the claimed
invention are questions of fact. In re Bell, 991 F.2d 781, 784, 26 USPQ2d 1529,
1531 (Fed. Cir. 1993).
According to the examiner, Yamazaki teach a hammerhead ribozyme that
cleaves mutant EGFR mRNA found in malignant gliomas. Answer, page 4. The
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