Appeal No. 2003-1418 Page 4
Application No. 09/056,707
The examiner rejected the claims as obvious over Ahmed and Wagner.
The examiner cited Ahmed as “teach[ing] proteoglycans such as chondroitin
sulfate to be useful in treating allergic conditions such as asthma [and] allergic
rhinitis.” See Paper No. 11, mailed July 12, 2000, page 3. The examiner cited
Wagner as teaching “the flavonoid quercetin to be useful in treating allergic
diseases and bronchial asthma.” Id. Thus, she concluded that it would have
been obvious to treat asthma with a combination of chondroitin sulfate and
quercetin, since treatment of asthma with each ingredient individually was taught
in the prior art. See id., pages 3-4.
We begin by construing the claims. “[N]ot unlike a determination of
infringement, a determination of anticipation, as well as obviousness, involves
two steps. First is construing the claim, . . . followed by, in the case of
anticipation or obviousness, a comparison of the construed claim to the prior art.”
Key Pharms. Inc. v. Hercon Labs. Corp., 161 F.3d 709, 714, 48 USPQ2d 1911,
1915 (Fed. Cir. 1998).
Claim 1 is directed to a method of treating an atopic allergic disease by
administering “a pharmaceutically effective amount of a proteoglycan with mast
cell secretion inhibitory activity, said proteoglycan comprising a chondroitin
sulfate.” The specification states that chondroitin sulfate is a proteoglycan, and
that proteoglycans, in turn, are “high molecular weight polyanionic
macromolecules (heteropolysaccharide) consisting of many different
glycosaminoglycan chains linked covalently to a protein core.” Page 4. Thus,
when the claims are read in light of the specification, they should be construed as
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