Appeal No. 09/975,899 Page 7
Application No. 2006-0292
vessels. See id. As compared to P-selectin which has low constitutive
expression, ICAM-1 has higher constitutive expression. See id. at 55. In
addition, P-selectin was expressed in the endothelium of larger vessels, and not
in the microvasculature. See id. at 67.
Because of the differences taught by Hallahan II in the induction of P-
selectin versus the induction of ICAM-1 following ionizing radiation, we find that
Hallahan II does not provide a teaching or suggestion of replacing antibodies to
ICAM-1 for the antibodies to P-selectin in the methods disclosed by Hallahan I
and Hallahan II for selectively delivering therapeutic agents to tumor vasculature.
As discussed above, ICAM-1 is distinguishable from P-selectin by having a
higher level of basal expression, a different vascular localization, and by requiring
a higher level of ionizing radiation for induction. Thus, ICAM-1 does not meet the
criteria that les Hallahan II to select P-selectin as a CAM that is useful in methods
of targeting.
Even if we were to find that Hallahan II suggests the use of antibodies to
ICAM-1 in the therapeutic methods using antibodies to P-selectin taught by
Hallahan I and Hallahan II, at most the rejection rises to the level of obvious to
try, and the references as combined provide no reasonable expectation of
success of arriving at he claimed method. We find that there is no reasonable
expectation of success because of the differences in the induction of P-selectin
and ICAM-I in response to exposure to ionizing radiation, as already discussed
above. See The Gillette Co. v. S.C. Johnson & Son, Inc., 910 F.2d 720, 725, 16
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