Appeal No. 2001-1805 Page 5
Application No. 09/141,402
having a melting point of approximately 143-145º C.” Stated another way, they
are different compounds.
The claimed invention is drawn to a specific polymorphic form of N-(3,4-
Dimethyl-5-isoxazolyl)-4’-(2-oxazolyl)[1,1’-biphenyl]-2-sulfonamide that has a
melting point of approximately 143-145º C. The prior art relied upon by the
examiner does not teach this specific polymorph as claimed by appellants. The
examiner failed to demonstrate that the prior art even recognized that the
claimed compound exists in different polymorphic forms, or that there is a known
or obvious way to manufacture the specific polymorphic form claimed.
Hoeksema. Stated differently, the examiner failed to demonstrate that
Murugesan provides an enabling disclosure of the compound set forth in
appellants’ claim 41. In contrast the examiner has not rejected appellants’
claims under 35 U.S.C. § 112, first paragraph, thus the examiner has found on
this record that appellants’ specification provides an enabling disclosure of how
to make and use the claimed invention.
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