Appeal No. 2006-0624 Page 12
Application No. 10/096,127
not enabled.” See Amgen, Inc. v. Hoescht Marion Roussel, Inc., 314 F.3d 1313,
1355, 65 USPQ2d 1385, 1416 (Fed. Cir. 2003) (footnote and citation omitted).
Appellants have not presented such evidence, and the arguments of counsel
cannot take the place of evidence in the record. See in re Scarbrough, 500 F.2d
560, 566, 182 USPQ 298, 302 (CCPA 1974); In re DeBlauwe, 736 F.2d 699, 705,
222 USPQ 191, 196 (Fed. Cir. 1984).
Appellants argue further that the references as combined provide no
reasonable expectation of success in achieving the claimed invention. See
Appeal Brief, page 16.
Appellants assert that Queen teaches that antibodies to gamma interferon
may be used to treat a variety of autoimmune diseases, including SLE. See id.
Appellants argue that they have submitted the declaration of Simon Skurkovich
which states that “SLE cannot be treated with antibodies to gamma interferon,
and that antibodies to gamma interferon cannot be used to treat every
autoimmune disease. Therefore, the skilled artisan, armed with the knowledge
that all autoimmune diseases cannot be treated with antibodies to gamma
interferon, would readily assess that identifying a disease as an autoimmune
disease does not give the person of ordinary skill in the art a reasonable
expectation in treating the disease.” Id. at 16-17.
Appellants address the argument of the examiner that the instant
specification discloses the treatment of SLE in humans using anti gamma
interferon antibody, stating that “the results discussed are preliminary . . . and
correspond to the results in the Skurkovich Declaration [ ], where an
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