Appeal No. 1997-2756
Application 08/242,728
of Murray is histamine. (Answer, page 5). The examiner has not established, on this
record, that histamine is an antithrombin agent. That the reference may suggest or
describe the metabolic pathway associated with the condition being treated does not,
standing alone, suggest the specific treatments presently claimed. Thus, Murray fails to
anticipate the rejected claims. Therefore, the rejection of claims 3 and 6 under 35 U.S.C.
§ 102 is reversed.
The rejection under 35 U.S.C. § 103
In rejecting the claims under 35 U.S.C. § 103 the examiner notes that Roth, at page
1218, teaches the use of nedocromil sodium to treat asthma. (Answer, page 3). The
examiner, additionally, notes that Roth teaches, at page 1222, column 1, first paragraph
under DISCUSSION and page 1224, column 1, first full paragraph, that nedocromil
sodium blocks or interferes with thrombin activity. (Answer to the Reply Brief, page 1).
That nedocromil sodium interferes with thrombin activity is acknowledged at page 2, lines
5-9 of the Specification.
Claim 6:
As to claim 6, we would agree with the examiner's determination that the claim is
unpatentable as being at least obvious over Roth. It would appear that the examiner has
presented the rejection in terms of 35 U.S.C. § 103 in view of the focus on mechanism of
action or the pharmacological pathway, described by appellants, on
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