Interference 102,760
After having reviewed all the evidence submitted
by Rapoport, we agree with Dement et al. that the two
presentations given by Dr. Rapoport [on March 5, 1988,
and March 11, 1989,] and the publications (RX 10 and 11)
do not render the Dement et al. claims unpatentable.
The Dement et al. claims are directed to a method for
treatment of sleep apneas comprising administration of
a therapeutically effective amount of an azapirone to a
patient in need of such treatment, whereas Dr. Rapoport’s
presentations and publications (RX 10 and 11) disclose
other methods, including one for treating anxiety, a
condition other than sleep apnea. . . . [S]edatives, such
as buspirone, would not have been expected to be useful
for
the treatment of sleep apnea due to the fact that arousal
and motor tone in the upper airway would be reduced. To
overcome sleep apnea when the airway collapses, a patient
must awaken from sleep and if a patient is sedated, the
patient might not awaken.
Thus, the Board denied Rapoport’s Motion Under 37 CFR
§1.633(a) (Paper No. 12) for judgment because Rapoport had not
established that any claims of Dement et al. Application
07/695,325 are unpatentable (Paper No. 112, p. 10, first
para.).
The Board also granted Rapoport’s Motion To Accept
Belated Filing Of Preliminary Motion Under 37 CFR
1.633(a)(Paper No. 51) for the reasons stated therein (Paper
No. 112, p. 13, first full para.); granted-in-part Rapoport’s
Motion For Judgment Under
37 CFR §1.633(a) or 37 CFR §1.635 (Paper No. 52), allowing a
testimony period but deferring judgment on the issue of the
7
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