Appeal No. 1997-3010
Application 08/042,461
Appellant depicts Moskowitz’s disclosure as follows:
Moskowitz et al. is directed to defining neuronal connections by using
the enzyme horseradish peroxidase (“HRP”) to trace nerve fibers that
project to cerebral blood vessels (see page 460 of Moskowitz et al.).
HRP is applied to cerebral blood vessels in order to minimize uptake
of HRP by adjacent nerve endings which do not project to blood
vessels and to maximize uptake of HRP by nerve fibers which do
project to the blood vessels. HRP is not a drug and has no effect on
blood vessels.” [Appeal Brief, Paper No. 40, page 4]
The examiner does not dispute this description of Moskowitz. Based on our
reading of Moskowitz, we find appellant’s description is substantially correct. The
claimed invention requires applying a polymer matrix which is impregnated with “an
agent for the treatment of a vascular disorder“ directly to the external surface of an
artery or vein so as to produce “a localized effect on the artery or vein without
systemic effect.” We do not find in Moskowitz any suggestion or reason to apply a
release polymer impregnated with an agent for the treatment of vascular disorder to
an artery or vein so as to produce the localized effect on an artery or vein. The
examiner contends that it would have been obvious to one of ordinary skill in the art
that Moskowitz’s method “could be used” for delivering a drug for the treatment of
blood vessels. The mere fact that the prior art could be modified would not have
made the modification obvious unless the
prior art suggested the desirability of the modification. In re Gordon, 733 F.2d 900,
902, 221 USPQ 1125, 1127 (Fed. Cir. 1984).
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