Appeal No. 2004-2202 Page 6
Application No. 10/016,324
This passage is evidence that the compositions disclosed by Marshall do not
contain a therapeutic agent entrapped in lipid vesicles. Further evidence that Marshall’s
therapeutic DNA is not contained within liposomes is provided by the working examples:
in each case, the cationic amphiphile is mixed with lipid(s) and solvent, the solvent is
evaporated to form a thin film, and the film is then hydrated with an aqueous medium.
Only then is the DNA added to allow formation of a “complex”. See Example 1
(columns 44-45):
[S]permidine cholesterol carbamate (amphiphile No. 35) and the neutral
lipid [DOPE] were each dissolved in chloroform as stock preparations.
Following combination of the solutions, a thin film was produced by
removing chloroform from the mixture by evaporation. . . .
To produce a dispersed suspension, the lipid film was then hydrated with
sterile deionized water (1 ml) for 10 minutes, and then vortexed for 1
minute. . . . The resulting suspension was then diluted with 4 ml of water.
. . .
The following procedure was used to test a 1:1 molar mixture of the
cationic amphiphile spermidine cholesterol carbamate in combination with
DOPE. A 165 µl aliquot of spermidine cholesterol carbamate (670 µ M)
containing also the colipid (at 670 µ M) was pipetted into 8 separate wells
[and serially diluted to yield 64 solutions]. . . .
Independently, DNA solutions (165 µl, 960 µM) were pipetted into 8 wells
[and serially diluted to yield 64 solutions]. . . .
The 64 test solutions(cationic amphiphile:neutral lipid) were then
combined with the 64 DNA solutions to give separate mixtures in 64
wells. . . . The solutions of DNA and amphiphile were allowed to stand for
15 to 30 minutes in order to allow complex formation.
The same procedure was followed in the example (Example 6) cited by the
examiner. See column 53:
Following generally the procedures described in Example 1, a thin film
(evaporated from chloroform) is produced . . . . The amphiphile-containing
film is rehydrated in water-for-injection with gentle vortexing. . . .
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