Appeal No. 95-3056
Application 07/833,718
§ 1.192(c)(5)(October 22, 1993). Claim 1 reads:
1. Solid 2-octynyl adenosine having a water content
of not more than 3%.
2. Examiner’s findings
A. The examiner finds that each of Miyasaka and Matsuda
describe 2-octynyl adenosine (Ans., p. 5, l. 19-20).
B. The examiner finds that Weygand describes “processes
commonly used by the practitioner to produce and isolate
compounds which are free from impurities, i.e.,
recrystallization from anhydrous solvents, drying under vacuum
at temperatures above ambient, etc.” (Ans., p. 5, l. 21-24).
C. The examiner finds that Miyasaka and Matsuda
isolated 2-octynyl adenosine as a “hydrate” (Ans., p. 5, l.
27-28).
D. The examiner finds that 2-octynyl adenosine hydrates
are not patentably distinct from anhydrous 2-octynyl adenosine
(Ans., pp. 5-6, bridging sentence).
E. Based on Morozumi’s Declarations Under 37 CFR 1.132,
filed July 6, 1993 (Paper No. 14) and April 13, 1994 (Paper
No. 21 ) and accompanying remarks, the examiner finds that1/2
persons having ordinary skill in the art would have known that
“practical production of 2-octynyladenosine on large scale was
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