Appeal No. 94-4009 Paper No. 32
Application No. 07/953,716 Page 4
the '930 patent is within the subgenus of claim 22; compound
I-1-5 (Table 9) of the '999 patent is within the subgenus of
claim 23; and compound I-1-7 (Table 7) of the '698 patent is
within the subgenus of claim 24.
The examiner rejected all pending claims under 35 U.S.C.
§ 103 as having been obvious in view of each of the three
Fujikawa patents in combination with Avery's Drug Treatment
594-595 (3d ed., Trevor M. Speight ed. 1987) ("Speight").
Appellants submitted as evidence in the record a
declaration from co-inventor Masaki Kitahara (Paper No. 16)
and an excerpt from W.C. Bowman & M.J. Rand, Textbook of
Pharmacology, Second Edition, pp. 23.61-23.62 (1980)
("Bowman").
The claims directed to specific dose ranges and methods
of administration (claims 15-17) were not separately argued
(Paper No. 18 at 3). Nevertheless, we find that the claimed
methods of administration and dosages are disclosed in the
Fujikawa patents ('930 at 12:31-33 and 52-54; '999 at 26:54-56
and 27:7-9; '698 at 28:35-37 and 56-57).
DISCUSSION
To determine patentability under 35 U.S.C. §§ 102 and
103, one must first construe the claims. Key Pharm. Inc. v.
Hercon Labs., 161 F.3d 709, 713, 48 USPQ2d 1911, 1915 (Fed.
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