Appeal No. 2000-2007
Application 09/063,784
incorporated into a liposome and/or combined with a phospholipid and/or a ganglioside,
and a pharmaceutically acceptable vehicle.
23. A method of using a pharmaceutical composition according to claim 22, said
pharmaceutical composition having a cytotoxic activity, comprising administering the
composition to mammals over a period of time for the treatment of disease involving
cells having a high proliferative potential.
31. Pharmaceutical composition comprising a therapeutically effective amount of a
drug of a least one C3-OH ether of 7ß-hydroxycholesterol selected from the group
consisting of ethers of palmitic, oleic, hexenoic, decenoic and arachidonic acid,
incorporated into a liposome and/or combined with a phospholipid and/or a ganglioside,
and a pharmaceutically acceptable vehicle.
32. A method of using a pharmaceutical composition according to claim 31, said
pharmaceutical composition having a cytotoxic activity, comprising administering the
composition to mammals over a period of time for the treatment of diseases involving
cells having a high proliferative potential.
The reference relied upon by the examiner is:1
Kupferberg et al. (Kupferberg), "Effect of 7 ß-hydroxycholesterol on astrocyte primary
cultures and derived spontaneously transformed cell lines: cytotoxicity and metabolism."
Biochimica et Biophysica Acta, 1013, pp 231-238 (1989)
Claims 22, 23, 25-28 and 30 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Kupferberg and claims 31, 32 34,35, 36, 37, 39 stand rejected under 35
U.S.C. § 103(a) as obvious over Kupferberg. We reverse.
DISCUSSION
Both rejections can be quickly decided. All claims on appeal require that the
active agent be "incorporated into a liposome and/or combined with a phospholipid
and/or a ganglioside." Nowhere in the Examiner's Answer does the examiner point out
1 The examiner discusses a reference identified as McMurry in the paragraph bridging pages 4-5 of the
Examiner's Answer. As stated in In re Hoch, 428 F.2d 1341, 1342 n. 3, 166 USPQ 406, 407 n. 3 (CCPA
1970) "[w]here a reference is relied on to support a rejection, whether or not in a 'minor capacity,' there
would appear to be no excuse for not positively including the reference in the statement of the rejection."
Accordingly, we have not considered McMurry in deciding the issues presented in this appeal.
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