Appeal No. 2004-2170 Page 5
Application No. 09/901,429
seen” (id., page 30), and “[t]he net balance of protein synthesis and breakdown
achieved anabolic levels” (id., page 29), while “[f]at-free mass, corresponding to the
sum of lean mass and bone mass . . . was preserved . . . In comparison, ten untreated
time control subjects lost 9% of their fat-free mass . . .” (id.). “In summary,” according
to the specification, “long term $ blockade decreases lean mass catabolism in severely
burned children” (id., page 32). Thus, to meet every element of the claimed invention,
propranolol treatment must have a positive effect on muscle protein net balance as
compared with non-treated controls.
On the other hand, Herndon administered propranolol at an initial dosage of 2
mg/kg body weight per day, for five days, and observed a decrease in heart rate and
lipolysis, but “failed to document an effect of propranolol . . . on protein kinetics[,]” even
though “two independent approaches for assessing net protein breakdown” were used
(Herndon, page 1304). It may be that a five day course of propranolol was not long
enough to improve protein kinetics, or it may simply be that there were other differences
in methodology that resulted in Herndon’s failure to document an effect on protein
kinetics. In any case, the examiner has not explained how Herndon’s finding that
propranolol had no effect on protein kinetics can be consistent with the examiner’s
assertion that Herndon’s method results in an improvement in skeletal muscle protein
kinetics.
On this record, the examiner has not established that Herndon anticipates every
element of the claims on appeal. The rejection of claims 1-7 and 9-12 is reversed.
REVERSED
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