Appeal No. 1997-1955
Application No. 08/423,498
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of claims 46
through 51, all the claims remaining in the application. Claims 46 through 51 are
reproduced in the Appendix accompanying appellants’ Brief (paper no. 12).
The references relied on by the examiner are:
Crenshaw (Crenshaw I) 3,394,125 Jul. 23, 1968
Crenshaw et al. (Crenshaw II), “Potential Antifertility Agents. 1. Substituted Diaryl
Derivatives of Benzo[b]thiophenes, Benzo[b]furans, 111-2-Benzothiapyrans, and 211-1-
Benzothiapyrans,” Journal of Medicinal Chemistry, Vol. 14, No. 12, pp. 1185-1190 (1971)
Erber et al. (Erber), “2-Phenylbenzo[b]furans: Relationship between Structure, Estrogen
Receptor Affinity and Cytostatic Activity against Mammary Tumor Cells,” Chemical
Abstracts, No. CA 116:120397 (Anti-Cancer Drug Design, Vol. 6, No. 5, pp. 417-26
(1991))
The sole issue for our review is the provisional rejection of claims 46 through 51
under the judicially-created doctrine of obviousness-type double patenting. According to
the examiner, the present claims are unpatentable over claim 36 of co-pending application
serial no. 08/438,334 in view of Crenshaw I, Crenshaw II and Erber.
We reverse the examiner’s rejection.
BACKGROUND
Endometriosis is a condition of uncertain etiology characterized by endometrial
growths located in inappropriate tissues which do not respond appropriately to normal
hormonal control. The ectopic tissue is associated with an inflammatory-like response,
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