Appeal No. 2005-2235 Page 11
Application No. 09/038,894
the claim reads on a subject recognizing that the subject is experiencing
inflammation. It would seem quite clear to us that inflammation results from the
release of inflammatory mediators. Therefore, administering an anti-
inflammatory to the subject would prevent a disease or disorder that is within the
scope of appellants’ claimed invention. In this regard, we not that page 10 of
appellants’ specification discloses
[a]s used herein, treatment means any manner in which the
symptoms of a conditions [sic], disorder or disease are ameliorated
or otherwise beneficially altered. Treatment also encompasses any
pharmaceutical use of the compositions herein.
As used herein, amelioration of the symptoms of a particular
disorder by administration of a particular pharmaceutical
composition refers to any lessening, whether permanent or
temporary, lasting or transient that can be attributed to or
associated with administration of the composition.
In this regard, we direct the examiner’s attention to Adams et al. (Adams),
United States Patent No. 5,447,957, which issued September 5, 1995.
According to Adams (column 1, lines 10-14), “[a]n early event in the response of
most inflammatory cells to immunologic activation and other stimuli is the release
of newly formed products (mediators) which alter the function and biochemistry of
surrounding cells and tissues.” Therefore, most subjects experiencing
inflammation will have elevated levels of inflammatory mediators. Adams
proposes to treat this condition by administering a compound of Formula (I). See
abstract, and column 4, line 50 – column 5, line 17.
Accordingly, prior to any further action, we encourage the examiner to
reconsider the scope of appellants’ claims, together with Adams, and any other
relevant prior art to determine whether appellants’ claims are free of the prior art.
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