Appeal No. 2005-0978
Application No. 09/983,232
and R” are independently selected from alkyl, cycloalkyl, aryl,
heterocyclo, and heteroaryl, or R’ and R” together with the nitrogen
atom to which they are both attached form a three to eight-
membered heterocyclo or heteroaryl radical....
As shown above, the Eilon structure has a piperazinyl-alkanoyl moiety
attached to the amino group, which does not fall within the permissible
substituents for “amino,” “substituted amino,” “amido,” or “substituted
amido” as they are defined in the specification.
More particularly, appellants argue that “[a]lkanoylamido is defined in
paragraph 46 of the specification as having the following structure:
–NH-C(O)–R, where R can be heterocyclo, which would encompass piperazine
(note definition at paragraph 34). However, a comparison of the structures shows that
the Eilon structure has an additional methylene (carbon) linkage not present in the
alkanoylamido...” Brief, page 9. Thus, the Eilon structure does not meet the definition
of “alkanoylamido” as defined in the specification. Nor does the Eilon structure meet
any definition of any of the remaining A4 substituents. Brief, page 10.
In response the examiner argues that “Appellants’ definition of an ‘amido’ group
(on page 14 of the specification) encompasses the heterocyclic substituted
carboxyamide moiety contained in the generic formula (I) disclosed by Eilon et al.”
Answer, page 5.
In our view, the response by the examiner fails to rebut appellants’ arguments
that Eilon does not disclose a compound within the generic formula, as claimed. The
examiner has pointed to no compound or specific substituent of Eilon which anticipates
a compound falling within the scope of claim 51. The rejection of claims 51-53 for
anticipation over Eilon is reversed.
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