Appeal No. 2001-0942 Page 5
Application No. 08/473,960
Instant claim 17 is directed to a method of treating damage to cells, tissues, or
organs of a mammal by administering either a metal-independent nitroxide or an
oxazolidine capable of forming an oxazolidine-1-oxyl “to said mammal, after exposure
to ionizing radiation.”
Accordingly, as summarized supra and in appellants’ Brief (pp. 4-7), the two
differences are that 1) Mitchell claim 13 administers an oxidized form of the metal-
independent nitroxide or oxazolidine while instant claim 17 is directed to administering
certain identically illustrated compounds, and 2) Mitchell claim 13 administers the
compound to an organism susceptible to oxidative stress due to ionizing radiation while
instant claim 17 administers the compound after exposure to ionizing radiation.
Therefore, in assessing whether instant claim 17 is patentably distinct from
Mitchell patent claim 13, it is incumbent on examiner to demonstrate that the step of
administering one of the recited metal-independent nitroxides or oxazolidines to a
mammal after it has been exposed to ionizing radiation is not indicative of the existence
of a patentable difference over administering the oxidized form of a metal-independent
nitroxide or oxazolidine to a mammal susceptible to oxidative stress due to the
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