Appeal No. 2004-0358 Page 4
Application No. 08/997,748
preconditions, e.g., for suitability of contrast media for NMR diagnostics” (page 2, lines
18 and 19). Further, the specification states that “[f]or the first time, well tolerated
contrast media are available, inter alia, for the visualization of tumors of the liver and
spleen” (page 6, lines 7 through 10). This, however, is not a description of agents
suitable for imaging the blood stream or of a method for imaging the blood stream.
Rather, the record makes clear that a description of ferromagnetic particles,
used as contrast agents in NMR imaging for producing images of the liver, spleen, or
bone marrow, is not tantamount to a description of angiography or of imaging the blood
pool. See the above-cited Jacobsen patent and the discussion of Jacobsen in the
Ebert Declaration, filed under the provisions of 37 CFR § 1.132, executed January 17,
2002. In their argument on appeal, applicants do not point to any passage or passages
in the original specification describing “new magnetic materials useful in medical
diagnoses” possessing the characteristics required for use in angiography, i.e., imaging
of the blood pool.
In an effort to overcome the rejection under 35 U.S.C. § 112, first paragraph,
applicants rely heavily on the following passage in the “Background of the Invention”
portion of their specification:
Complexes of magnetite (Fe3O4) with dextran or human serum albumin
are described, for example, in U.S. Patents 4,101,435 and 4,452,773 and
in J. Pharm. Sci., 68, 79 (1979). In water they form stable colloidal
solutions which are put to a wide range of uses because of their magnetic
properties. Thus, they are suitable, inter alia, as drug carriers (above all
as cytotoxic agents in the treatment of tumors), as agents for
measurements in the blood stream, as markers in scanning/transmission
electron microscopy, for marking and separating cells and biomolecules
(e.g., an antigen from a mixture of antigens by using particles bound
covalently to the corresponding antibody), as well as for use in the
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