Appeal No. 1998-2089
Application 08/443,507
on appeal. We therefore adopt that position as our own, adding the following remarks
for emphasis only.
Applicants rely on four references to show the state of prior art at time their
invention was made. These references are:
Sheardown, et al. (Sheardown), “2,3-Dihydroxy-6-nitro-7-sulfamoyl-
benzo(F)quinoxalime: A Neuroprotectant for Cerebral Ischemia,” Science, Vol.
247, pp. 571-574, 1990
Meldrum, “Excitatory amino acids in epilepsy and potential novel therapies,”
Epilepsy Research, Vol. 12, pp. 189-196, 1992
Smith, et al. (Smith), “The non-N-methyl-D-aspartate receptor antagonists, GYKI
52466 and NBQX are anticonvulsant in two animal models of reflex epilepsy,”
Eur. J. of Pharm., Vol. 201, pp. 179-183, 1991
Meldrum, “Excitatory amino acid receptors and disease,” Current Opinion in
Neurology and Neurosurgery, Vol. 5, pp. 508-513, 1992
Applicants have attached copies of these references to their Appeal Brief, and argue
that the state of the prior art weighs in favor of a determination that their disclosure is
enabling. We disagree. First, as pointed out by the examiner, only the Sheardown
reference is of record. The other references have not been made part of the
administrative record, and have not been considered by the examiner (Examiner’s
Answer, Paper No. 15, page 14; communication mailed by the examiner February 13,
1998, Paper No. 19). Nor shall they be considered by us. Second, in our judgment, the
examiner has adequately responded to applicants’ argument based on the Sheardown
reference (Examiner’s Answer, pages 14 and 15).
Applicants rely on a description of four assays in their specification, pages 14
and 15, as establishing that (1) the claimed compounds have utility, and (2) the
specification teaches any person skilled in the art how to use the full scope of the
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