Appeal No. 2005-0792 Page 17
Application No. 09/750,373
utility and would lead the art skilled [sic] to ‘conclude that the asserted utility is
more likely than not true.’”
For the foregoing reasons, we disagree with appellants’ conclusion (id.),
“[t]he specification discloses that the claimed receptors are useful in the
treatment of asthma and diabetes….” In our opinion, the evidence of record
does not support this assertion. Accordingly, we affirm the rejection of claim 25
under 35 U.S.C. § 101 as lacking utility and § 112, first paragraph, for lack of
enablement based on the finding of lack of utility. As discussed supra claims 1,
7-10, 12-24 and 29-33 will stand or fall together with claim 25.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 CFR § 1.136(a).
AFFIRMED
)
William F. Smith )
Administrative Patent Judge )
)
) BOARD OF PATENT
)
Donald E. Adams ) APPEALS AND
Administrative Patent Judge )
) INTERFERENCES
)
)
Eric Grimes )
Administrative Patent Judge )
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