Appeal 2007-1155
Application 10/230,575
3. Claims 1-15 stand rejected under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over claims 1-20 of
Schatzberg‘046.
We reverse.
DISCUSSION
Down’s syndrome (DS) is a genetic trait that “arises from one of three
chromosomal abnormalities” (Specification 1: ¶ 03). In most cases “DS is
the result of trisomy 21, or the presence of an extra chromosome 21 in
otherwise diploid cells” (id.). However, about 2-4% of DS cases are the
result of a translocation event, “occurring when a fragment of chromosome
21 becomes attached to another chromosome, most typically chromosome
14” (id.). “The rarest form of DS[ ](about 1-4% of cases) results from
nondisjunction of chromosome 21 during early embryogenesis. Such
individuals are mosaic, with both normal and trisomic cells being present”
(id.).”
“DS individuals are almost invariably cognitively impaired . . .”
(Specification 1: ¶ 04). “Generally, significant developmental delays are
apparent in DS child[ren] in infancy and early childhood. . .” (id.).
“Superimposed on this early cognitive impairment, however, is a more
serious deterioration of cognition that begins to appear as individuals with
DS age” (Specification 1: ¶ 05). “No effective treatment for the cognitive
impairment and decline of DS individuals is known” (id. at 2: ¶ 06).
Appellant asserts that “[t]he present invention therefore fulfills the need for
an effective preventive measure for cognitive deterioration in DS patients by
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