Appeal No. 2006-0624 Page 14
Application No. 10/096,127
Moreover, with respect to appellants arguments that the declaration of
Simon Skurkovich establishes that SLE cannot be treated with antibodies to
gamma interferon, as noted by the examiner, see Examiner’s Answer, page 10,
predictability is determined at the time of invention. Queen teaches that
autoimmune diseases can be treated with antibodies to IFN gamma, and the
Ashkenazi references teach that the autoimmune inflammatory bowel diseases,
such as Crohn’s disease, may also be treated with antibodies to gamma
interferon. Thus, at the time of filing the expectation established by the prior art
is that autoimmune diseases may be treated with antibodies to gamma
interferon. Even appellants specification suggests the treatment of SLE with
antibodies to gamma interferon. The Skurkovich data was obtained after the
filing date, and appellants have provided no evidence or data that the declaration
reflects the understanding of the ordinary artisan at the time of filing.
Claim 22 stands rejected under 35 U.S.C. § 103(a) as being unpatentable
over the combination of Queen, Ashkenazi I or Ashkenazi II, Levinson and
Enssle, as further combined with Tomasi, or as obvious over the combination of
Ashkenazi I or Ashkenazi II, Novick, Levinson and Enssle as further combined
with Tomasi. See Examiner’s Answer, pages 6-7. As appellants have not
argued the merits of this rejection separately, the rejection is affirmed for the
reasons set forth supra.
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