Appeal No. 1997-3135
Application 08/208,497
hypertension, and this finding is supported by a previous study where oral administration of
Nitrendipine caused a significant drop in intraocular pressure. On the other hand,
Abelson's results conflict with those of Beatty and Associates, who found a slight increase
in pressure in humans who had received topical Verapamil. Abelson also discloses that
Diltiazem did not lower intraocular pressure in a pilot study of ten ocular hypertensive
subjects (unpublished data). This means to say that some calcium channel blockers
cause a decrease in intraocular pressure and others do not, and these facts were known to
persons having ordinary skill in the art at the time applicants' invention was made. As
stated by Abelson, page 158, left-hand column, last full paragraph, “[t]he pharmacologic
profile of different calcium channel antagonists is varied.”
Where, as here, the cited prior art does not disclose using calcium channel
blockers, generically, for treating glaucoma by the sustained reduction of intraocular
pressure in humans, the premise of the examiner's rejection is unsupported by evidence
and the rejection must fall. At the time applicants' invention was made, it was known that
some calcium channel blockers cause a decrease in intraocular pressure and others do
not. On this record, the examiner has not established that when all of the prior art is
considered together, a person having ordinary skill would have had a sufficient basis for
the necessary predictability of success to sustain a rejection under 35 U.S.C.§ 103. In re
Clinton, 527 F.2d 1226, 1228, 188 USPQ 365, 367 (CCPA 1976). The examiner has not
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