Appeal No. 1999-1273
Application 08/709,916
To supply this omission in the teachings of the applied prior art, the examiner made
determinations (Answer, page 5) that direct correlation between the presence of elevated
levels of 3-chlorotyrosine and the atherosclerotic disease condition would have been
obvious to an artisan. However, this determination has not been supported by any
evidence that would have led an artisan to arrive at the claimed invention.
Although the examiner finds that the in vitro investigations of Domigan, using a four
amino acid peptide, support the proposition that chlorotyrosine will be a specific marker
for the production of hypochlorous acid in vivo and for the involvement of myeloperoxidase
in inflammatory tissue damage (Answer, page 6), the examiner points to no evidence
showing or suggesting a direct correlation between the presence of elevated levels of 3-
chlorotyrosine and the atherosclerotic disease condition, or the relevance of elevated
levels of 3-chlorotyrosine of 10 to 100-fold as compared to normal vascular tissue.
In our view, the only suggestion for modifying the cited references in the manner
proposed by the examiner to meet the above-noted limitations stems from hindsight
knowledge derived from the appellant’s own disclosure. The use of such hindsight
knowledge of appellant's disclosure to support an obviousness rejection under
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