Appeal No. 1996-0756 Paper No. 24
Application No. 08/027,853 Page 2
Interferon beta is also written "interferon-$" and "IFN-$".
According to Appellants (Paper No. 14 at 3 to 4, emphasis in
original):
The present invention is not based on the fact
that a particular antiestrogen is useful in the
treatment of breast cancer. It is not based on the
fact that interferon-$ is useful for the treatment
of breast cancer. The invention is also not based
on any assertion that it is unexpected to combine
the separate and known antiproliferative effects of
IFN-$ and antiestrogen. Nevertheless, what is
decidedly not obvious from the references relied on
[by] the Examiner is that the use of these materials
sequentially and with the IFN-$ being administered
first gives rise to a synergistic result.
The only point in contention is whether Appellants'
results are unexpectedly synergistic. Appellants bear the
burden of showing that their results are unexpected. E.g., In
re Geisler, 116 F.3d 1465, 1469-70, 43 USPQ2d 1362, 1365 (Fed.
Cir. 1997). A result is synergistic if the evidence shows a
combined effect greater than the sum of the separate effects.
Merck & Co., Inc. v. Biocraft Laboratories Inc., 874 F. 2d
804, 808, 10 USPQ2d 1843, 1847 (Fed. Cir. 1989). Appellants
rely on data described at pages 6 to 8 and illustrated at
Figures 1A, 1B, and 2 of their specification to demonstrate
that sequential administration of IFN-$ and an antiestrogen
yields a result that is unexpected.
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