Appeal No. 1998-0143
Application No. 08/268,177
the '610 patent" (Answer, p. 7) or presented any other arguments of nonobviousness.
Indeed, appellants' prior position had been that
[w]ith regard to the method of present Claim 11, Applicants are in
agreement with the Examiner that the subject matter of this claim may be
rejectable under this doctrine. Accordingly, Applicants are willing to submit
a Terminal Disclaimer directed solely to Claim 11 and any subsequent
claims which may be added that are dependent upon Claim 11.
[Amendment filed September 11, 1995 (Paper No. 7), p. 3.]
Therefore, based upon this record, we sustain the rejection of claim 11 over claims 1-11
of the '610 patent.
As to the remaining claims, we agree with appellants that "Claims 12 to 15 are
directed to a totally different invention than that described in the '610 patent or as
described in Claim 11" (Brief, p. 11). As summarized by appellants,
Claims 12-15 have nothing to do with neural fiber growth ... These claims
are clearly drawn to delivery of pharmaceutically-active agents directly
within a specific cell type, i.e., astrocytes, by allowing such cells to "ingest"
pharmaceutically-agent containing microspheres and having the agent
permeate through the microsphere polymers directly into the cytoplasm of
the astrocyte cells. [Reply brief, Paper No. 23, filed May 27, 1997, p. 4.]
Although the examiner is of the opinion that "delivery [of microspheres] to one cell type of
the central nervous system [i.e., neurons] would involve delivery to the second [i.e., glial
cells (astrocytes)]" (Answer, para. bridging pp. 9-10) (see also the Supplementary
Answer, Paper No. 24, mailed August 14, 1997, p. 3, § (4) and the Second
Supplementary Answer, Paper No. 26, mailed October 17, 1997, pp. 2-4), the examiner
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