Ex Parte VON HOFF et al - Page 5

                Appeal No.  2001-0992                                                   Page 5                
                Application No.  08/527,880                                                                   
                associated non-Hodgkin’s lymphoma (see e.g., Answer, page 8, “[t]he prior art                 
                use of gallium nitrate to treat NHL generally would have motivated the skilled                
                artisan to employ these compounds to treat non-Hodgkin’s lymphoma in any                      
                patient population….”), obvious-to-try, however, is not the standard of                       
                obviousness under 35 U.S.C. § 103.  See In re O’Farrell, 858 F.2d 894, 903, 7                 
                USPQ2d 1673, 1680 (Fed. Cir. 1988).                                                           
                      Accordingly, we reverse the rejection of claims 1-5 under 35 U.S.C. § 103               
                as being unpatentable over Hart in view of Warrell I, Warrell II, and Warrell III.            

                                                 REVERSED                                                     



                                   Sherman D. Winters              )                                          
                                   Administrative Patent Judge     )                                          
                                                                   )                                          
                                                                   )                                          
                                                                   ) BOARD OF PATENT                          
                                   William F. Smith               )                                          
                                   Administrative Patent Judge     )   APPEALS AND                            
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                                                                   ) INTERFERENCES                            
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                                   Donald E. Adams                 )                                          
                                   Administrative Patent Judge     )                                          
















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