Appeal No. 2001-1030 Page 5
Application No. 09/159,334
Thus, the prior art, when considered as a whole, does not support the
examiner’s contention that one of ordinary skill in the art would read
inflammatory bowel diseases as used by the Backström reference to encompass
radiation enteropathy. The Martenson and Resbeut references demonstrate that
compounds that are known to be efficacious in the treatment of inflammatory
bowel disease are not necessarily efficacious in the treatment of radiation
enteropathy. At best, it may have been obvious to try and treat radiation
enteropathy using Orazipone given the teachings of the Backström reference,
but obvious to try is not the standard by which obviousness is determined. See
In re Dow Chemical Co., 837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir.
1988) (noting that a determination of obviousness not only requires that the prior
art would have suggested the claimed process to one of ordinary skill in the art,
but also that the process would have a reasonable likelihood of success when
viewed in light of the prior art).
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