Appeal No. 2003-0564 Page 2
Application No. 08/964,498
9. The method of Claim 1 wherein the polymer comprises a repeat
unit of the general formula
wherein R1 and R2 are each, independently, is hydrogen, a substituted or
unsubstituted, normal, branched or cyclic alkyl group, or a substituted or
unsubstituted aryl group; or R1, R2 and the nitrogen atom together form a cyclic
system; and X is a pharmaceutically acceptable anion.
The examiner relies on the following references:
Howes 2,090,605 Dec. 12, 1980
Holmes-Farley WO 95/05184 Feb. 23, 1995
Claims 9-18 stand rejected under 35 U.S.C. § 103 as obvious in view of
Howes and Holmes-Farley.1
We reverse.
Background
Elevated phosphate levels, or hyperphosphatemia, “frequently
accompanies diseases associated with inadequate renal function,
hypoparathyroidism, and certain other medical conditions.” Specification, page
1. The condition can cause “aberrant calcification in joints, lungs, and eyes.” Id.
1 The rejection based on Howes and Holmes-Farley is the only rejection applied to the claims,
despite the examiner’s statement that he “could just as well make the rejection combining newly
submitted Patent Document EPA 793960.” Paper No. 19, mailed Nov. 7, 2000, page 2. The ‘960
reference was not cited as a basis for the rejection, nor did the examiner provide any explanation
whatsoever of how it might form a basis for rejecting the claims. To the extent that the examiner
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