Appeal 2007-0628
Application 10/225,082
The Examiner has not established that the claims are unpatentable
under 35 U.S.C. § 112, first paragraph. The rejection of claims 45, 47, 50,
53-69, and 73 for lack of adequate written description is reversed.
3. OBVIOUSNESS
All of the claims on appeal stand rejected under 35 U.S.C. § 103, as
follows:
• Claims 45, 47, 50, 73, 75, 77, 80, and 103 as obvious in view of
Martens2 and Phanithi;3
• Claims 53-68 and 83-98 as obvious in view of Martens, Phanithi,
and “further in view of appellants[’] own disclosure;” and
• Claims 69 and 99 as obvious in view of Martens, Phanithi, and
Jackowski.4
Since all of these rejections rely on the combination of Martens and
Phanithi, we can consider them together.
The Examiner relies on Martens for its disclosure of assaying for
S100β in cerebrospinal fluid (CSF) and its teaching that “S100β is elevated
in CSF due to cerebral ischemia” (Answer 5). The Examiner also notes that
Martens teaches that a second marker is elevated in CSF during cerebral
ischemia, but does not teach assaying for caspase-3 (id.).
2 Martens et al., “Serum S-100 and neuron-specific enolase for prediction of
regaining consciousness after global cerebral ischemia,” Stroke, Vol. 29, pp.
2363-2366 (1998).
3 Phanithi et al., “Mild hypothermia mitigates post-ischemic neuronal death
following focal cerebral ischemia in rat brain: Immunohistochemical study
of Fas, caspase-3, and TUNEL,” Neuropathology, Vol. 20, pp. 273-282
(2000).
4 Jackowski, US 6,235,489, May 22, 2001.
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