Appeal No. 94-3007
Application 07/809,039
teachings of Debono, col. 2, lines 3-5, that the A-21978C
cyclic peptides of the prior art are useful as
intermediates.
The evidence in this case appears to support the
examiner’s findings of a close structural similarity and/or a
hydrate/
anhydrate relationship between the prior art compounds and the
compounds appellants claim. We are mindful that close
structural similarity between a prior art compound and a new
compound may, depending on the facts, provide persons having
ordinary skill in the art with all the motivation necessary to
make and use the new compounds with reasonable expectation
that the new compounds would have substantially the same
properties as the old compounds. However, the evidence in
this case as a whole would not have led a person having
ordinary skill in the art to the same conclusion. Here,
secondary evidence of record strongly suggests that minor
changes in the ring structure of a cyclic peptide useful as an
antibacterial agent was known not only to affect the activity
to cyclization reactions, the author does not indicate whether
Asp residues of cyclic peptides are more or less susceptible
to cyclization side reactions than Asp residues of peptides in
general. On this point, see Debono’s declaration dated
September 1, 1992 (Paper No. 21).
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