Appeal No. 2005-1150
Application No. 09/953,450
Third, that Delhaye does not evaluate “patient parameters relating to diabetes,” is
immaterial. Representative claim 1 does not require that any particular effect be
achieved by the method described therein. It is only directed to the treatment of Type I
diabetes patients, which Delhaye does. Accordingly, the appellants’ argument does not
address a limitation present in the claims.
Accordingly, pursuant to 37 C.F.R. § 41.50(b), we find that claim 1 is
unpatentable under 35 U.S.C. § 102(b) as being anticipated by Delhaye. As discussed
above, claims 3, 4, 6 and 7 fall with claim 1.
Claim 5
We agree with the examiner that the subject matter of claim 5 is unpatentable
under 35 U.S.C. § 103 in view of Delhaye. However, because our reasons differ from
those of the examiner, we set them forth as a new ground of rejection pursuant to 37
C.F.R. § 41.50(b).
As discussed above, Delhaye discloses the treatment of humans having primary
diabetes mellitus Type I with a pharmaceutical preparation comprising a physiologically
acceptable enzyme mixture with lipolytic, proteolytic and amylolytic activity. Delhaye,
p. 700, col. 1, para. 5 and col. 2, paras. 3-5. Delhaye further discloses that bacterial
lipases are “more resistant to acid inactivation than porcine lipase” and, thus, are more
stable in vivo. Id., p. 702, col. 2. Given the teachings of Delhaye with respect to the
greater stability of microbial lipases compared to porcine lipase, we find that it would
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