Appeal No. 2001-1264 Page 3
Application No. 08/819,630
The present applicant has previously filed the patent applications
concerning the adsorbent for removing interleukins, which comprises a
solid material having an anionic functional group (Japanese Patent
Application No. 226906/1994 (National Republication of PCT Application
No. PCT/JP95/01859 (WO 96/09115)) and Japanese Patent Application
No. 229298/1995 (Japanese Unexamined patent publication No.
281101/1996)). Therefore, among interleukins, interleukin-8 having
chemotaxis, which is a chemokine classified into CXC subfamily and has
8.6 of the isoelectric point, is excepted from the chemokine of the present
invention.
Note also page 8, lines 28-29 of the specification which state “[h]owever, interleukin-8 is
excepted from the chemokine in the present invention.”
Discussion
The statutory duty of the Board in ex parte appeals is to “review adverse
decisions of examiners upon applications for patents.” 35 U.S.C. § 6(b). The two
rejections set forth in the Examiner’s Answer are difficult to review for a number of
reasons.
One reason is that neither the examiner nor appellants have discussed that
aspect of the claimed invention which excludes interleukin-8 from being adsorbed in
formulating their respective positions. As more fully developed in the new ground of
rejection set forth below, until the metes and bounds of this aspect of the claimed
invention are clarified, it is difficult to determine the patentability of the claims on appeal
over the relevant prior art.
Another reason is that the examiner’s statements of the rejections do not reflect
that the examiner considered the patentability of the claims on appeal using the correct
legal standards. As a consequence, the examiner has not performed the
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