Appeal No. 1996-2910
Application 07/825,488
The Declaration of Raymond Xhonneux, filed January 24, 1992 under the
provisions of 37 CFR § 1.132, presents evidence supporting a conclusion that the
RSSS stereoisomer, unlike its enantiomer, SRRR, “only minimally affects blood
pressure when administered alone” but significantly “potentiates the antihypertensive
effects of the (SRRR)-compound, but not the bradycardiac affects [sic] of the (SRRR)-
compound.” See page 4 of the Declaration. The examiner does not propose any
reason why a person having ordinary skill in the art would have expected the RSSS
stereoisomer to have such properties. Nor does the examiner contend that the
potentiating property, described in the declaration, is insignificant. Therefore, we
reverse the rejection of the claims under 35 U.S.C. § 103 on the strength of appellants’
rebuttal evidence establishing that the claimed subject matter possesses unexpectedly
superior results.
OTHER ISSUES
As stated previously, the appealed claims were finally rejected under 35 U.S.C.
§§ 102 (a) and (b) (Paper no. 14, February 15, 1994). The claims were said to be
described by Van Lommen, without clarification or explanation. On pages 6 through 9
of their Brief, appellants argue that Van Lommen discloses only unresolved mixtures of
stereoisomers, and so does not anticipate the RSSS stereoisomer alone (claim 25), or
in combination with its enantiomer, SRRR (claim 26). The examiner was persuaded by
that argument, and both rejections were expressly withdrawn in the Examiner’s Answer
(page 3).
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