Appeal No. 2005-1150
Application No. 09/953,450
would have suggested to one of ordinary skill in the art that the references should be
combined to arrive at the claimed treatment of diabetes Type I.
Nevertheless, we note that during the prosecution of the application, and up until
the Answer was submitted, the examiner had rejected the claims under 35 U.S.C.
102(b) as being anticipated by Delhaye. It is not clear to us why the examiner dropped
this rejection. We hereby reinstate the 102(b) rejection, but because the rejection was
withdrawn by the examiner we do so as a new ground of rejection pursuant to 37 C.F.R.
§ 41.50(b).
New Ground of Rejection
Claim 1
Claims 1, 3, 4, 6 and 7 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Delhaye.
We find that Delhaye discloses treating twelve (12) patients having insulin-
dependent diabetes with pancreatin having lipolytic, amylolytic and proteolytic activity.
Delhaye, p. 700, col. 1, para. 5 and col. 2, paras. 3-5. Specifically, Delhaye discloses
treating said patients with pharmaceutical preparations comprising a physiologically
acceptable enzyme mixture of “25,000 European Pharmacopoeia Units (EPU) lipase,
22,500 EPU amylase and 1250 EPU protease” (Pancrease HL capsules) or “8,000 EPU
lipase, 9,000 EPU amylase and 450 EPU protease” (Creon capsules). Id., col. 2,
paras. 3-5. According to the specification and the Appendixes attached to the Brief,
diabetes mellitus Type I is insulin-dependent diabetes. Thus, we find that Delhaye
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