Appeal No. 2001-1499 Page 4
Application No. 08/957,654
Schwarz, 10 mg/ml of α1-antitrypsin is used. Accordingly we affirm the rejection
of claim 7 under 35 U.S.C. § 102(b) as anticipated by Schwarz.
Lezdey:
According to the examiner (Answer, page 6), Lezdey “teaches topical
compositions comprising alpha-1-antitrypsin analogs for use in treatment of
inflammatory skin conditions such as burns and atopic dermatitis.”
In response, appellants argue (Brief, page 20), “Lezdey requires, e.g., in
Example III the leucine analog of α1-antitrypsin in an amount … which is at least
2 orders of magnitude higher than needed to achieve an effective composition in
[a]ppellants’ invention.” In response, the examiner argues (Answer, page 12),
“the Brief disregards Lezdey[‘s] … [e]xamples I and II with an approximately 1%
AAT concentration, and disregards the disclosure at page 2, lines 1-3, of
[a]ppellants’ specification that AAT concentrations of up to 10 mg/ml, i.e. about
1%, are preferred concentrations.”
The examiner offers no explanation for how he arrived at a value of 1%,
from appellants’ disclosure (specification, page 2) of a “wound dressing
composition … from 100ng to 10mg/ml, preferably 10µg to 1mg/ml of ATT….”
We also find no explanation from the examiner as to how any therapeutically
effective amount in Lezdey would correlate to appellants’ claimed invention.
Therefore, in our opinion, the examiner failed to provide the evidence necessary
to establish that Lezdey anticipates appellants’ claimed invention. In this regard,
we remind the examiner “[u]nder 35 U.S.C. § 102, every limitation of a claim
must identically appear in a single prior art reference for it to anticipate the
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007