Appeal No. 2003-1678 Page 6
Application No. 08/722,659
Example 8 of Zimmermann evaluates the local administration of heparinase to a
rabbit being used as an ischemic model. Zimmermann states that ischemia was
surgically induced in rabbits with heparinase being administered for 10 days beginning
on the 11th day following surgery. Id., column 17, line 66 - column 18, line 29.
Heparinase was administered in an amount of 100 IU-day-1. Id. The rabbits treated
with heparinase demonstrated increased blood pressure ratio as well as increased
revascularization following ischemia. Zimmermann, Table 4. Zimmermann concludes
that the data reported in Example 8 indicates the "potential utility" of using heparinase
for "accelerating tissue repair in humans."
In determining whether the procedures set forth in Example 8 of Zimmermann
meets that required by claim 1 on appeal, the first question is whether the "patient" in
Zimmermann is that required by claim 1 on appeal. The "patient" treated in
Zimmermann with heparinase was a rabbit. However, Zimmermann indicates that the
procedure used is a model and that the procedure set forth in the example shows the
potential utility of use in humans.
Appellants do not argue that claim 1 differs from the procedure set forth in
Example 8 on the basis of the "patient" being treated. Examples 7 and 8 of this
specification also demonstrate the effectiveness of the claimed method using standard
laboratory animals, e.g., rats and rabbits. We find no explicit definition of the word
"patient" in the written description of this application. Thus, the rabbits treated in
Example 8 of Zimmermann with heparinase following surgically induced ischemia are
patients within the scope of claim 1 who are suffering from "an ischemia/reperfusion
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