Appeal No. 1995-3257
Application 08/056,382
After careful review of examiner's position, we
conclude that examiner has not demonstrated that claim 19
is an obvious variation of patent claim 1. We reach this
decision for two reasons.
First, an essential element of claim 19 - "an
antidotal effective amount" of the antibody - is ignored.
This feature presents a limitation on the antibody within
the remaining topical composition and places a constraint
not suggested in patent claim 1. The purpose of
supplying this amount is to decrease the toxic effect in
animals caused by administration of an anthracycline
antibiotic (claim 19, preamble). Patent claim 1 is
directed broadly to the antibody and recites no
particular amount. For claim 19 to be an obvious
variation of patent claim 1, examiner would have to show
that it would have been obvious to provide an antidotal
effective amount of the antibody of patent claim 1.
However, no reason for doing so is given.
Second, examiner dismisses the "use" language and
carrier recited in claim 19 because they are conventional
but does not explain why they would have been obvious
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