Appeal No. 2001-1150 Page 2
Application No. 09/767,764
administering to said patient the autologous therapeutic agent of claim 1.
The examiner cites the following references:
Caplan, “Chronic fatigue syndrome or just plain tired?” CMAJ, Vol. 159,
pp. 519-20 (1998)
Goldenberg, “Fibromyalgia, chronic fatigue syndrome, and myofascial pain
syndrome,” Current Opinion in Rheumatology, Vol. 9, pp. 135-43 (2000)
Levine, “What We Know About Chronic Fatigue Syndrome and Its Relevance to
the Practicing Physician,” Am. J. Med., Vol. 105 (3A), pp. 100S-103S (1998)
All of the claims stand rejected under 35 U.S.C. § 112, first paragraph, as
containing subject matter which was not described in the specification in such a
way as to enable one skilled in the art to which it pertains, or with which it is most
nearly connected, to make and/or use the invention. After careful review of the
record and consideration of the issue before us, we reverse.
DISCUSSION
Claims 1, 3-6 and 8-10 stand rejected under 35 U.S.C. § 112, first
paragraph, on the ground that they contain subject matter that was not described
in the specification in such a way as to enable one skilled in the art to which it
pertains, or with which it is most nearly connected, to make and/or use the
invention.
The rejection cites Levine to demonstrate that chronic fatigue syndrome
(CFS) exhibits a variety of symptoms, thus precluding the use of a laboratory test
for diagnosis and requiring individualizing the treatment of the syndrome to the
symptoms of the individual. Examiner’s Answer, pages 5-6. Levine, as well as
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