Appeal No. 2001-1030 Page 3
Application No. 09/159,334
Orazipone in treating radiation enteropathy having recognized that
radiation enteropathy is encompassed by the Backstrom et al.
reference. In particular, ‘enteropathy’ as defined in any standard
medical dictionary is any disease of the intestines and the term
‘bowel’ as recognized in any standard medical dictionary is defined
as the intestine. Hence, since Backstrom teaches that Orazipone
may be administered to treat inflammatory bowel diseases and
does not limit to one specific inflammatory bowel condition, but
discloses that chronic inflammatory conditions of the
gastrointestinal tract are also encompassed by their invention
(abstract; column 1, lines 9-23) and since Applicant’s independent
claim 1 does not include a radiation step; (1) radiation exposure is
not necessary in the treatment of radiation enteropathy which logic
is consistent with Applicant’s disclosure on page 5, lines 9-13
wherein Orazipone may be administered prior to, during, or
subsequent to radiation therapy; and (2) a skilled practitioner in the
art using any standard medical dictionary would recognize that
‘enteropathy’ and ‘bowel disease’ are interchangeable terms since
the medical dictionary discloses that both terms refer to diseases of
the intestines.
Examiner’s Answer, pages 4-5.
Appellants contend that, contrary to the examiner’s assertion, that
radiation enteropathy does not fall under the umbrella of inflammatory bowel
diseases, and is thus not encompassed by the Backström reference.
Inflammatory bowel disease, according to appellants, refers only to Crohn’s
disease and ulcerative colitis, whereas radiation enteropathy results from
exposure to radiation during cancer treatment, causing chronic intestinal toxicity
that damages the small intestine. Appellants cite the Resbeut and Martenson
references to support their position that radiation enteropathy is distinct from the
chronic inflammatory bowel diseases encompassed by the Backström reference.
The burden is on the examiner to set forth a prima facie case of
obviousness. See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598-99
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