Appeal No. 1997-2355
Application 08/228,300
Appellants argue that the rejections of claims 11 and 41
should be reversed because these claims are of the same scope as
allowed claim 5. Claims 11 and 41, however, include the specie
[16",(+)]-15-methyl-20,21-dinoreburnamenine, which is the specie
upon which the examiner’s prima facie case of obviousness is
based. This specie has been deleted from claim 5 (amendment
filed January 10, 1996, paper no. 15, page 2).
Appellants argue that the board did not take into account a
typographical error in the Oberlander declaration dated
February 6, 1992 wherein, appellants argue, “Example 4” with
respect to Clemence should have read “Example 5”. As pointed out
in our decision (page 7), both the examiner and appellants
referred on the record to a comparison against Clemence’s
example 4, and our decision was based on that record. Appellants
include with their request a declaration by Jean Claude
Vieillefosac. This declaration is not timely, as it was not made
of record and considered by the examiner prior to our decision.
Consequently, we do not consider this declaration at this time.
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