Appeal No. 95-3056
Application 07/833,718
2-octynyl adenosine is clearly erroneous. See the examples in
the specification and Morozumi’s Declaration Under 37 CFR
1.132 filed July 6, 1993 (Paper No. 14), which establish by
elemental and stability analysis that 2-octynyl adenosine
monohydrate
(4.6% water) has markedly different properties from 2-octynyl
adenosines with a water content ranging from 3.14 to 0.93%.
Compare In re Papesch, 315 F.2d 381, 391, 137 USPQ 43, 51
(CCPA 1963):
From the standpoint of patent law, a compound and
all of its properties are inseparable; they are one and
the same thing.
Based on the comparative properties of the compounds, we find
that solid 2-octynyl adenosine monohydrate (4.6% water) is
patentably distinct from solid 2-octynyl adenosines with a
water content of not more than 3%. While it may “not defy
logic . . . that a compound of known chemical structure,
initially isolated in hydrate form, should not be patentably
distinguishable from the identical compound rendered
anhydrous” (Ans., p. 6, l. 9-12), the greater weight of
evidence of record in this case reasonably suggests the
contrary.
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