Appeal No. 1997-2336
Application No. 08/256,065
of acetylsalicylic acid to provide blood levels between 0.1 to 1.0 microgram/ml. (Answer,
page 4).
The appellants have, also, submitted 16 references, listed above, in addition to
Thun I, to establish that aspirin has efficacy in the prevention of several different cancers.
(Supplemental Reply Brief filed May 19, 1997). We note, initially, that all of these
documents were published after the effective filing date of the present application.
(December 12, 1992). Thus, they can not be said to represent the state of the art or the
skill level of those in this art as of the filing date of this application. They are of little
probative value for the proposition asserted by the appellants that the disclosure was
sufficient at the time of filing of the application for patent to permit the practice of the
invention without undue experimentation. In re Wright, 999 F.2d 1557, 1562, 27 USPQ2d
1510, 1514 (Fed. Cir. 1993) ("[A]ll of these developments occurred after the effective filing
date of Wright's application and are of no significance regarding what one skilled in the art
believed as of that date."). The examiner, having reviewed these documents, maintained
the position that the evidence may link aspirin to a "reduction of risk" of cancer, but urges
that this was not equivalent to "prevention" as presently claimed.
Having weighed all of the evidence of record, including the Wands factors, we find
no error in the examiner's determination that the specification does not enable one skilled
in this art to use the claimed invention throughout its scope without undue experimentation.
Appellants have failed to provided evidence or arguments which, on balance, would be
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