Appeal No. 1996-2216
Application No. 08/087,058
The examiner has not established that all inflammatory conditions have the same
etiology and, therefore, are amenable to the same therapeutics. Furthermore, as argued
by appellants, "complement inhibitors exert their effects at different points along the
complement cascade. Hence, complement activation in a particular disease may bypass
the point at which a proposed inhibitor may exert its effects" (reply brief, page 7). Thus, the
examiner has not established that the action of one known complement inhibitor is
reasonably predictive of the action of any other known complement inhibitor absent a
knowledge of where the complement inhibitors exert their effects in the complement
cascade. Finally, the examiner has neither acknowledged nor addressed appellants'
separate patentability arguments drawn to the specified dosages recited in claims 7 and 8
(brief, pages 14-15), although the examiner acknowledges that "Appellant's brief includes
a statement that claims 1, 3, 5 and 7-9 do not stand or fall together and provides reasons
[therefore] ... " (answer, page 2). This is clear legal error.
Based on the foregoing, we find the examiner has not carried her burden of
establishing a prima facie case of obviousness.
CONCLUSION
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