Appeal No. 2001-1499 Page 18
Application No. 08/957,654
reasonably have expected that a solution containing IL-1 and alpha-1-antitrypsin
would effectively aid healing of chronic wounds in general, including the specific
types of chronic wounds recited in the claims.
Second, although Rao does not show in vivo treatment of chronic wounds
using alpha-1-antitrypsin, it provides a reasonable basis on which to conclude
that the in vitro results they observed would also be seen in vivo. Specifically,
Rao discusses the role of fibronectin in wound healing, discloses that fibronectin
is degraded in chronic wounds, and discloses that alpha-1-antitrypsin prevents
degradation of fibronectin by proteinases in chronic wound fluids. The
proteinases inhibited by alpha-1-antitrypsin in vitro in Rao’s experiments would
be the same as those encountered by alpha-1-antitrypsin in vivo. Thus, those of
ordinary skill in the art would reasonably expect to obtain the same results in vivo
as those observed in vitro.
Finally, Appellants argue that Rao at best postulates that alpha-1-
antitrypsin may protect fibronectin in chronic wounds. The majority agrees with
this position, and concludes that the prior art only makes the instant claims
“obvious to try.” Ante, pages 8-9. For the reasons discussed above, I find that
Gillis and Rao would have provided those of skill in the art with a reasonable
expectation of success, and I conclude that the references support a prima facie
case under § 103. I would affirm all of the rejections based on Gillis and Rao, by
themselves or with Clark or Glover, and hold all of the claims unpatentable under
35 U.S.C. § 103.
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