Appeal No. 2003-0865 Page 4
Application No. 09/300,789
Discussion
The claims are directed to a “method of preventing or delaying the onset”
of Alzheimer’s disease or another neurodegenerative disease, by identifying an
individual at risk of the disease, administering a nonsteroidal anti-inflammatory
agent and/or a histamine H2 receptor blocking agent, and monitoring the
individual for onset of the disease. The examiner rejected all of the claims as
lacking utility, and rejected claim 23 as nonenabled.
1. Utility
The examiner rejected the claims as inoperative, and therefore as lacking
the utility required by 35 U.S.C. § 101. The examiner reasoned that
[t]he claims are drawn to preventing the onset of the clinical
symptoms of Alzheimer’s disease and preventing the onset of the
clinical symptoms of related neurodegenerative disorders. As of
the filing of the instant application no successful model or trial has
been demonstrated by the applicants or by any other practitioner
for the preventing [of] the onset of the clinical symptoms of
Alzheimer’s disease. . . .
Paper No. 9, page 2 (emphases in original).
Notwithstanding the evidence provided on pages 15-34 of the
specification, the examiner also asserted that “Applicants have not provided any
evidence for preventing the onset of the clinical symptoms of Alzheimer’s
disease.” Id., page 3. The examiner apparently reasoned that no amount of
evidence would suffice to show “prevention” of Alzheimer’s symptoms. See id.:
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