Appeal No. 2002-0518 Page 2
Application No. 08/934,471
wherein said pharmaceutical agent comprises dimethylaminoarglabin
or a pharmaceutically acceptable salt thereof.
The reference relied upon by the examiner is:
USSR State Registry of Inventions Certificate:
Adekenov et al. (Adekenov) 1746674 Mar. 8, 1992
GROUND OF REJECTION
Claims 1 and 5-8 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Adekenov.
We reverse.
DISCUSSION
According to the examiner (Answer, page 3), Adekenov “teaches
applicant’s compound, dimethyl amino arglabin [sic], for treating tumors and a
pharmaceutical composition containing said compound.” We agree that
Adekenov teaches the compound, dimethylaminoarglabin, set forth in appellants’
claimed invention. Appellants’ claims 1 and 5-7, however, require that the
claimed pharmaceutical composition consist essentially of a specific amount
(dose) of dimethylaminoarglabin. To reach this dosage limitation, the examiner
finds (Answer, page 4), “[t]he amounts employed in … [Adekenov] are higher
than those being employed by [a]ppelants (note the 30-50 mg/kg is the max
tolerable dose in the certificate).” The examiner, however, makes no attempt to
explain how this 30-50 mg/kg amount correlates to the amounts set forth in
claims 1 and 5-7. See e.g., claim 1, which requires 40 mg to about 480 mg of
dimethylaminoarglabin. Accordingly, it is our opinion that the examiner failed to
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