Appeal No. 2007-0531 Page 5
Application No. 10/341,679
vector expressing VEGF121 as taught by Tischer. Answer, page 5. The
Examiner asserts that the therapeutic advantages of VEGF121 would serve to
“enhance the desired therapeutic outcome” of Hammond’s method. Answer,
bridging paragraph, pages 5-6.
Appellants assert that Hammond “does not disclose directly injecting a
pharmaceutical composition to a heart” but instead “discloses intraarterial [(e.g.
administration into the coronary arteries)] delivery of an expression vector.”
Brief, page 3. Appellants explain that “the coronary arteries are not part of the
heart, as evidenced by the schematics from the Texas Heart Institute[ ]5. . . .”
Brief, page 4. Appellants assert that Tischer discloses the direct injection of
VEGF protein to the site of damaged cardiac muscle, but “does not disclose or
suggest administering an adenoviral vector encoding VEGF via multiple
injections directly to the heart, much less multiple injections that are administered
within about 10 minutes.” Id.
We find that the weight of the evidence falls in favor of Appellants. While
the coronary arteries may be attached to the heart, it is our opinion that the
evidence of record establishes (see the two documents from the Texas Heart
Institute) that a person of ordinary skill in the art would recognize that injection
into the coronary arteries is not the same as injection on the internal surface of
the heart as is required by Appellants’ claimed invention.
5 The Evidence Appendix of Appellants’ Brief, includes two documents from the Texas Heart
Institute Heart Information Center (Texas Heart Institute): (1) “Anatomy of the Heart: The
Coronary Arteries – Texas Heart Institute Heart Information Center,” (Dec. 28, 2005)
http://www.tmc.edu/thi/coroanat.html; and (2) “Anatomy of the Heart – Texas Heart Institute Heart
Information Center,” (Dec. 29, 2005) http://www.tmc.edu/thi/anatomy2.html. This evidence “was
entered into the record by the Examiner as indicated in the ‘Advisory Action’ dated February 1,
2006.” Brief, Evidence Appendix.
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