Appeal No. 2006-0148 Page 10
Application No. 09/933,309
Those having ordinary skill in the art would expect that a doubling of functional thymic
mass would result in an increase in thymic function.” Appeal Brief, page 16.
The evidence referred to by Appellant is apparently the declaration he submitted
under 37 CFR § 1.132 (originally filed August 29, 2003). The declaration describes an
experiment in which Appellant administered to himself hGH and DHEA over a period of
36 days, and the results of magnetic resonance imaging (MRI) before and after the
period of hGH and DHEA administration. The declaration states that the MRI “images
showed a combination of visually white . . . mass indicative of adipose tissue
substitution for lymphoid tissue, a typical observation for this age range, and visually
gray . . . mass, representing lymphoid or functioning thymic mass. However, the [after-
treatment] set of images distinctly and consistently shows more total thymic cross-
sectional area and more gray thymic cross-sectional area, and a definite darkening of
some gray regions following treatment.” Page 2 (“Results”).
The examiner did not dispute the accuracy of the Fahy declaration but argued
that an increase in thymic mass does not necessarily mean an increase in thymic
function. See the Examiner’s Answer, page 23: “Goff[5] . . . states a change (or lack of
change) in thymic morphology does not prove increased or decreased thymic function;
immunological or endocrine function must be assessed. Furthermore, the Fahy
Declaration fails to demonstrate that immune system function has been restored.”
We do not agree that Goff provides evidence contrary to the evidence in the
Fahy declaration. Goff teaches that the “thymus gland has an endocrine component,
5 Goff et al., “Growth hormone treatment stimulates thymulin production in aged dogs,” Clin. Exp.
Immunol., Vol. 68, pp. 580-587 (1987).
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