Appeal No. 1999-1417
Application 08/268,730
Where, as here, applicants signal their intention to rely on declaration evidence, but do not
present any argument or arguments based on that declaration, we shall not consider the
Rule 132 declaration further.
Applicants argue that the active ingredients recited in claims 76 through 80, N-acyl-
lysogangliosides, are derived from gangliosides which “play an important role in the
nervous system” and “are useful in therapy for pathologies affecting the peripheral nervous
system and in pathologies affecting the central nervous system.” On this point, applicants
invite attention to the instant specification, paragraph bridging pages 13 and 14, including
a list of reference citations therein. Applicants’ position appears to be that: (1) persons
skilled in the art, at the time the invention was made, recognized that the parent
gangliosides are useful in therapy for pathologies affecting the nervous system; and (2) it
would not, therefore, require undue experimentation to practice the full scope of the
claimed invention using N-acyl-lysogangliosides in view of the knowledge and information
imparted by the specification. We disagree.
First, as we have discussed previously, at the time applicants’ invention was made
the prior art did not recognize effective means of treatment for a number of
neurodegenerative disorders embraced by the appealed claims. A number of these
disorders have different etiologies, even though “related to” or “associated with” excitatory
amino acid-induced neurotoxicity. See the Olney reference, particularly pages 52 through
61, section entitled EXCITOTOXINS AND NEURODEGENERATIVE DISORDERS.
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