Appeal No. 2002-1121 Page 2
Application No. 09/171,169
This is a decision on appeal under 35 U.S.C. § 134 from the examiner’s
final rejection of claims 14-22, 24, 25 and 30.1 The claims are drawn to “[a]
method of stimulating tear secretion and mucin production in eyes” comprising
administering an effective amount of preparation which includes compounds
such as uridine-5΄-triphosphate, adenosine-5΄-triphosphate or cytidine-5΄-
triphosphate, and derivatives thereof, as well as a physiologaclly acceptable
vehicle selected from the group consisting of aqueous electrolyte solutions,
polyethers, polyvinyls, polymers of acrylic acids, lanolin, and
glucosaminoglycans, “whereby said preparation promotes tear secretion and
mucin production in the eyes in a subject in need of such treatment.” Claim 14.
The examiner relies upon the following reference:
Jacobus et al. (Jacobus) 5,789,391 Aug. 4, 1998
Claims 14-22, 24, 25 and 30 stand rejected under 35 U.S.C. § 103(a) as
being rendered obvious by Jacobus.2 After careful review of the record and
consideration of the issue before us, we reverse.
1 The statement of the rejection in the Examiner’s Answer rejects claims 14-22,
24, 25 and 29. See Examiner’s Answer, page 3. In the section entitled
“Grouping of Claims,” the examiner acknowledges that the Appellants’ Brief
states that claim 14-22, 24, 25 and 30 stand or fall together. Thus, the reference
to claim 29, which claim has been cancelled, is deemed to be a typographical
error, and the rejection will be reviewed as it applies to all of the pending claims,
i.e., claims 14-22, 24, 25 and 30.
2 The panel notes that in the final rejection, and as recognized in the Appeal
Brief, claims 14-22, 24, 25 and 30 were also subject to an obviousness-type
double patenting rejection over the Jacobus patent. That rejection was
apparently dropped by the examiner as the only ground of rejection set forth in
the Answer is the obviousness rejection over the Jacobus patent.
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