Appeal 2006-2644
Application 10/047,945
LT-10-bound IgE: since the treatment with Glucotrol did not include
administration of LT-10, it could not have resulted in any LT-10-bound IgE.
Appellants also argue that the previous decision improperly raised the
issue of whether IgE levels in saliva correspond to those in serum (Req. Rhg.
3). We disagree. The standard for whether an affirmance should be
designated a new ground of rejection is whether the appellant has had a “fair
opportunity to react to the thrust of the rejection.” In re Kronig, 539 F.2d
1300, 1302, 190 USPQ 425, 426 (CCPA 1976). The reasoning in our
previous decision is in agreement with the Examiner’s reasoning, and simply
adds one additional factor that supports the Examiner’s rejection. To the
extent that Appellants had not previously had reason to address the
correlation between saliva and serum levels of IgE, they had an opportunity
to do so in the Request for Rehearing, and took advantage of it.
To wit, Appellants argue that the “data in the specification
qualitatively supports an association between what was measured and what
has been claimed” (Req. Rhg. 4). Appellants point to several passages in the
Specification, none of which provides a comparison of IgE levels in saliva
and in serum.
Appellants also characterize the Specification’s “Experiment #3 (page
13, line 20)” as “reasonably show[ing] that the administration of 2 mg/day of
LT 10 steadily reduces serum levels of free IgE as measured in saliva over
the course of treatment as shown in Table 4” (Req. Rhg. 4).
We do not agree that the data presented on pages 13-15 of the
Specification provide the necessary correlation. The Specification states that
the data shown in Table 4 represent saliva levels of IgE. See page 13, lines
4
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