Appeal No. 2007-0054
Application No. 08/846,722
diseases treatable by the . . . method include but are not limited to bronchial
asthma, acute bronchitis, . . . and the like.” (Col. 7, l. 65, to col. 8, l. 10.)
Amschler describes compounds having anti-inflammatory activity that
can be used for the treatment of bronchial disorders, such as bronchitis and
bronchial asthma. (Col. 8, ll. 41-57.) Amschler states that the compounds
can also be used to prevent and treat allergic or chronic reactions, such as
rhinitis and sinusitis. (Col. 9, ll. 61-67.) We agree with the Examiner that
one of ordinary skill in the art would have been motivated by the teachings
of Katz and Amschler to treat disease states caused by inflammation of nasal
and sinus cells, such as rhinitis and sinusitis, by contacting the nasal and
sinus cells with pyruvate or a pyruvate precursor.
Appellants argue that Katz “does not teach the treating of
inflammatory disorders in the nose. It is not proper within the framework of
Section 103 to pick and choose from any one reference only so much of it as
will support a given position to the exclusion of other parts necessary for the
full appreciation of what such reference fairly suggests to one of ordinary
skill in the art.” (Br. 7.)
In addition, Appellants argue that there is “no suggestion or
motivation in the references of Katz or Amschler et al. or in the knowledge
generally available to one of ordinary skill in the art, to modify the
references or to [] combine [the] reference teachings in the manner proposed
by the Examiner. Moreover, there is no reasonable expectation of success
[in] combining Katz and Amschler et al. in the manner proposed by the
Examiner.” (Br. 9.)
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