Appeal No. 1997-1705
Application 08/211,352
the specification.
Regarding Case Study 1, appellant argues that it was
unexpected that in a gait analysis taken at four months after
a five year old girl was injected with botulinum toxin A,
which was after the effects of the toxin had clinically worn
off, her knee flexed to the same extent in swing that it did
prior to injection (reply brief, page 6). This argument is
not persuasive because appellants have not provided a
comparison with the closest prior art, explained why the3
results would have been unexpected by one
of ordinary skill in the art, or provided evidence which is4
commensurate in scope with claim 17 which encompasses relief
from arrested muscle growth which has a duration which is
greater than the clinical activity of the botulinum toxin A by
3See In re Baxter Travenol Labs., 952 F.2d 388, 392, 21
USPQ2d 1281, 1285 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d
699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984).
4See In re Freeman, 474 F.2d 1318, 1324, 177 USPQ 139,
143 (CCPA 1973); In re Klosak, 455 F.2d 1077, 1080, 173 USPQ
14, 16 (CCPA 1972).
8
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