Appeal 2007-4007
Application 90/006,954
Edwin B. Villhauer, N-substituted 2-cyanopyrrolidines, WO
98/19998 (pub'd 14 May 1998)
OSI has not pointed us to evidence that would antedate or otherwise
call into question the availability of these publications as prior art under
§102(a).
Claim 3 also stands rejected for being directed to subject matter that
would have been obvious to a person having ordinary skill in the art in view
of a third reference. Since we affirm the anticipation rejections, we do not
reach the obviousness rejection.
Anticipation by the Probiodrug published application
The Probiodrug publication discloses the use of dipeptide compounds
to treat a variety of conditions, including diabetes mellitus. The invention is
(Probiodrug 1, ¶¶1-2)—
a simple method of lowering the blood sugar concentration in
mammals with the aid of dipeptide compounds as activity-
reducing effectors (substrates, pseudosubstrates, inhibitors,
binding proteins, antibodies etc.) for enzymes having activity
comparable to or identical to the enzymatic activity of the
enzyme dipeptidyl peptidase IV.
We note that mammals are animals. Administration of effectors for the DP
IV enzyme is said to lower mammalian serum glucose concentration below
the level characteristic of hyperglycemia (Probiodrug 8, ¶2).
Probiodrug contemplates the use of the method as a long-term
treatment of diabetes mellitus (Probiodrug 5, ¶4). Long-term treatment
would require repeated administration of the effectors. Probiodrug even
discusses a daily dosing regimen (Probiodrug 9, ¶3).
OSI argues (Br. 5:2-10) that—
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