Appeal No. 95-2727
Application 07/699,898
22. A method of treating a tumor, said method comprising administering to a
host afflicted with a tumor an effective amount of an anti-tumor agent which comprises
a compound of claim 1.
54. Therapeutic compositions with antitumor activity comprising as active
principle a therapeutically effective amount of one or more compounds of formula (I) or
their therapeutically acceptable salts as defined in claim 1 in mixture with inert diluents
and excipients.
A reference relied upon by both appellants and the examiner is:
Physicians’ Desk Reference (PDR), 41st ed., pp. 561-62, 1987.
Upon consideration of the record, the examiner’s rejections of claims 1 through
11, 21, 22, and 54 through 56 under 35 U.S.C. § 101 as lacking utility and under 35
U.S.C. § 112, first paragraph, for lack of enablement are reversed. See In re Brana, 51
F.3d 1560, 34 USPQ2d 1436 (Fed. Cir. 1995).
Other Issues
The declaration filed under 37 CFR § 1.132 (Paper No. 7, filed August 10, 1992)
makes of record U.S. Patent 4,987,126 to Bargiotti et al. (Bargiotti). Bargiotti was filed
on February 10, 1989 and issued on January 22, 1991. Accordingly, Bargiotti is
available as prior art under 35 U.S.C. § 102(e). The claimed compounds can be
viewed as 8-fluoro analogs of the compounds of Bargiotti. The compounds of Bargiotti
are stated to be useful as antitumor agents. See column 6, lines 1-5. See also Tables
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