Appeal No. 1999-1417
Application 08/268,730
derivatives or salts thereof. Also, the very nature of applicants’ invention involves
administering a pharmaceutically active ingredient to a human patient in need of treatment
for “disorders related to excitatory amino acid-induced neurotoxicity” (claim 76) or
“suffering from the effect of neurotoxins” (claim 80). Each method claim before us relates
to a method of treating human patients.
Again, we believe that the examiner appropriately assessed the unpredictability of
the art and the nature of the invention in determining that applicants’ specification does not
teach those skilled in the art how to use the full scope of the claimed invention without
undue experimentation.
Applicants rely on in vitro and in vivo studies, described in their specification, as
teaching any person skilled in the art how to practice the claimed invention. In response,
the examiner argues that these studies are limited in scope because they involve only the
NMDA receptor (Examiner’s Answer, paragraph bridging pages 7
and 8). The examiner notes that there are at least three types of excitatory amino acid
receptors capable of mediating excitotoxic events, i.e., NMDA, Quis, and KA (Olney, page
51, second paragraph). The most studied of these and reportedly the most abundant and
widely distributed in the mammalian CNS, is the NMDA receptor. Several features
distinguish the NMDA receptor from other subtypes of EAA receptor. (Id.) As stated in the
concluding passage of the Olney publication,
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