Appeal No. 2002-1874 Page 8
Application No. 09/079,329
In respect to the use of D-arginine instead of L-arginine
described in the reference, an optically active isomer is
unpatentable over a prior art racemate or optical isomer of opposite
rotation in the absence of unexpected or unobvious beneficial
properties. In re Adamson et al., 125 USPQ 233 (CCPA 1960).
Id. at 7.
Appellant argues that neither Selwood nor Lo disclose the use of arginine
to treat a subject in need thereof, nor do the references teach the use of
D-arginine, and nor do the references teach or suggest the use of a blood
dialysis system. Appeal Brief, page 4. We agree.
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness. Only if that burden is
met, does the burden of coming forward with evidence or argument shift to the
applicant.” In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956
(Fed. Cir. 1993). The test of obviousness is “whether the teachings of the prior
art, taken as a whole, would have made obvious the claimed invention.”
In re Gorman, 933 F.2d 982, 986, 18 USPQ2d 1885, 1888 (Fed. Cir. 1991).
Selwood and Lo, as noted by the rejection, teach that methylglyoxal
covalently binds to blood proteins such as albumin, irreversibly modifying them,
and that arginine and N-a-acetyl arginine inhibit that binding by competing for
binding to methylglyoxal. There is no teaching or suggestion that arginine or
N-a-acetyl arginine may be administered in a dialysis system to block the effects
of methylglyoxal, nor do the references teach or suggest the use of D-arginine.
The rejection asserts that dialysis is a routine procedure for removal of
unnecessary contaminations from blood, and also asserts that the use of the
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