Appeal No. 1996-1009
Application No. 07/949,551
collaterals in dogs, there has been no showing that the sulfated heparins of the
references do not possess these properties. [Answer, page 5, first full paragraph.]
According to appellants, “[t]he prior art does not suggest treating patients for angina pectoris
as recited in the claims now on appeal. In addition, the heparin derivatives employed pursuant to the
present invention are quite different from the products suggested by the prior art” (brief, page 4, lines 1-
3).
As to treatment of angina pectoris, the examiner’s position is two-fold. First, “appellant’s
specification acknowledges that it is known in the art to use derivatives of heparin for treatment of
angina (see page 1 of the Background)” (answer, page 7). Secondly, since “[a]ngina is a symptom
directly related to an atherosclerosis situation. If the references teach prevention or treatment of the
underlying cause of angina, it therefore follows that prevention or treatment of angina itself is inherently
taught” (answer, page 7). First, the specification states that heparin, not derivatives of heparin, has
been found to improve collateral circulation in patients with effort angina (page 1, lines 14-19).
Secondly, the claimed invention requires treating a patient that has already has angina pectoris. 3
Atherosclerosis is not angina pectoris, just as angina pectoris is not myocardial infarction. That is not to
3 While the record in this appeal indicates that the examiner performed a database search of the PTO’s
automated patent search system (USPAT) and of chemical abstracts (CAS) for oxidized, reduced and/or sulfated
heparin derivatives, it does not appear that a database search linking heparin to angina pectoris was ever performed.
Therefore, in the event of further prosecution, the examiner should consider conducting a database search, e.g., in
MEDLINE, CAS, BIOSIS (biological abstracts) and the PTO’s own automated patent search system, linking at least
“heparin” to “angina pectoris,” e.g., within 10 words, and to publication years of 1992 or earlier, given the filing date
of this application.
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