Appeal No. 2001-1164 Page 5
Application No. 08/293,745
relied on additional evidence of non-obviousness attached to the Reply Brief, viz.,
Exhibits 1, 2, 3, and 4. Although it does not appear that applicant made a showing
under Rule 195,1 nevertheless, the examiner has not favored the record with a
statement respecting the entry of this additional evidence. The examiner has not stated
whether Exhibits 1, 2, 3, and 4 have been entered and considered. If those exhibits
have been entered and considered, the examiner has offered no explanation why they
do not provide an effective rebuttal of the rejection under 35 U.S.C. § 103.
We are presented in this appeal with a large number of claims of varying scope.
These claims include:
(1) a method for treating, and thereby reducing, specified drug resistant
cancers in a patient;
(2) a pharmaceutical composition for treating multidrug resistant disease
other than tuberculosis;
(3) a pharmaceutical kit;
(4) a method for treating a multidrug resistant disease;
(5) a method for treating, and thereby reducing, multidrug resistant cancer in
a patient by potentiating a primary anti-cancer drug to which said cancer
exhibits multidrug resistance;
(6) a method for treating, and thereby reducing drug resistant cancer in a
patient; and
(7) a pharmaceutical composition for reducing specified drug resistant
cancers in a patient.
The examiner lumps all of applicant's claims together, rejecting them as a group
under 35 U.S.C. § 103 as unpatentable over a combination of seven prior art references
1 §1.195 Affidavits or declarations after appeal.
Affidavits, declarations, or exhibits submitted after the case has been
appealed will not be admitted without a showing of good and sufficient
reasons why they were not earlier presented.
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