LINCK, Administrative Patent Judge, dissenting.
I respectfully dissent and thus would affirm the Examiner’s § 103(a)
rejection of claims 117-130.
The majority finds a prima facie case of obviousness has been made
(see supra p. 5) but then concludes Appellant’s Declaration has overcome
the prima facie case (see supra pp. 6-7), based on data for a single dosage in
a single type cancer, i.e., colon cancer. (Declaration ¶¶ 10-13; see also
Answer 10.)
I agree with the majority that the Examiner has made a prima facie
case of obviousness. And, to the extent Appellant’s data show the two-drug
combination is more effective than the two drugs used separately when
added together, that data may be sufficient to overcome the prima facie case
for colon cancer at the particular dose used in the study. (See Declaration ¶
14.) Such data might also support claims to a method of treating colon
cancer over a modest dosage range. But the claims are not so limited. (See,
e.g., claim 117 (reciting seven types of cancer and very broad dosage
ranges). Contrary to Appellant’s argument that all claims require “a
synergistic or greater than additive effect” (Reply Br. 3), they merely
require, e.g., “dosage unit[s]” that will provide a greater anti-cancer effect
than the effect obtainable with either the dosage unit of capecitabine or the
dosage unit of Compound (1) alone.” (Claim 117 (emphasis added).) As
the Examiner found, the claimed dosage units likely cover “all dosage
ranges” (Answer 10) and thus likely include ones that would not yield
synergism or unexpected results.
With respect to the six types of cancers recited in the claims other
than colon cancer, Appellant has not provided any evidence of unexpected
results. According to the majority, the prior art teaches the two drugs are
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