Appeal No. 1997-2744
Application No. 08/243,520
determine the effect of a compound on osteoporosis, i.e.; an overiectomized [sic]
rat. Isgaard teaches that the claimed known active agent would have activity to
increase long bone growth.” The examiner finds (Answer, page 4) that “[r]egardless
[of appellants arguments and the Guler Declaration] the suggestion in the Mueller
reference that the claimed known active agents can be used to treat osteoporosis is
deemed sufficient suggestion to use applicants claimed active agents to treat the
medical disorder osteoporosis.”
Appellants emphasize the conclusion in Mueller that “[c]ortical bone mass
was only weakly affected by OVX [ovariectomy] and by treatment with either [IGF-1
or parathyroid] hormone,” arguing (Brief, page 6) that “the ovariectomized rat model
they used was inadequate to study the effect of IGF-1 on cortical bone since OVX
did not appear to significantly affect such bone.” Appellants then argue (Brief, page
9) with reference to the Guler Declaration that the “103 rejection is based on an
improper ‘obvious to try’ standard.”
According to appellants, the Guler Declaration establishes (Brief, page 10)
that:
(1) “it could not be predicted from Isgaard that IGF-1 would be effective in
the treatment of osteoporosis of cortical bone” …;
(2) “Mueller pertains to trabecular bone, not cortical bone” …; and
(3) “any results obtained with respect to trabecular bone cannot be
extrapolated to cortical bone since the two bone types are structurally
and metabolically different.”
5 Paper No. 31, mailed January 5, 1995.
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