Appeal No. 2004-0250 Page 3
Application No. 09/226,412
Patent documents discussed by this merits panel are:
Rubsamen 5,364,838 Nov. 15,1994
Baker et al. (Baker) 5,504,188 Apr. 2, 1996
Chance et al. (Chance) 5,514,646 May 7, 1996
Gonda et al. (Gonda) 5,743,250 April 28, 1998
Claims 30 through 32, 34 through 46, 48 through 67 stand rejected under 35
U.S.C. § 102(e) as anticipated by Jensen. In reviewing the examiner’s rejection, we
find ourselves in agreement with the examiner’s conclusion that Jensen is an
anticipation under 35 U.S.C. § 102(e) and that the proffered declarations under 37 CFR
§ 1.131 are ineffective in removing Jensen as a basis for rejection. However, we reach
our conclusion based upon a significantly different basis than the examiner. Thus, we
denominate our affirmance of this rejection as a new ground of rejection under 37 CFR
§ 1.196(b). In addition, we make additional rejections under 37 CFR § 1.196(b) on
other prior art grounds.
Background
The claimed invention is directed to administering a monomeric insulin analog to
a patient in need. Claim 30 is specific to the modified human insulins to be
administered and requires that the stated modified human insulins be “inhaled through
the mouth of said patient” by “pulmonary means.” Claims 50 and 59 on the other hand
do not require the specific monomeric insulin analogs of claim 30 and only require that
the monomeric insulin analog be administered by “pulmonary means.”
Insulin is used to treat patients suffering from diabetes mellitus. Specification,
page 1. A certain percentage of diabetics self-administer one or more doses of insulin
per day by subcutaneous injection. Id., page 2. A non-injectable form of insulin is
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007