Appeal No. 95-1083
Application No. 08/004,444
questioning the sufficiency of the supporting specification as it relates to utility or how to
use the claimed invention.
While not considered as evidence in our consideration of these rejections, we note
that U. S. Patents 5,637,578 and 5,874, 421 have issued to appellants since the filing of
this appeal. These patents disclose and claim very closely related manganese
complexes, pharmaceutical compositions and uses, as well as process of making such
complexes, where the disclosed utility is the same as in the instant case.
The rejections under 35 U.S.C. § 101 and 35 U.S.C. § 112, first paragraph are
reversed.
The Rejection under 35 U.S.C. § 103
Claims 1-3, 6-8, and 12 stand rejected under 35 U.S.C. § 103 as obvious over
Kimura, Fujioka, Kimura (O) and Kimura (E) in view of Weiss, Petkau and Fretland.3
The examiner cites Kimura, Fujioka, Kimura(O) and Kumura(E) as teaching "that
compounds substantially similar to those claimed herein are known in the art." (Answer,
page 6). In addition, the Kimura (O) and Kimura (E) are relied on as teaching "that the
superoxide dismutase activity of substantially similar compounds is known in the art."
3 At page 7 of the Examiner's Answer the examiner discusses Bannister et al. The
reliance on this reference was specifically withdrawn in the Office action of February 1,
1994 (Paper No. 8). Therefore we have not considered this reference in consideration of
the rejection before us.
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