Appeal No. 2006-1031
Application No. 09/774,278
sizes of the instant nanoparticles as described in page 21, line[s]
7-10 of the specification encompass particles as large as 10 µm.
(see Ostensen at [col. 7, lines 26-45; ]col. 9, lines 34-38; col[s].
35-37, and claim[s] 4-5, 16-18 wherein various perfluorocarbon
emulsion mixtures are described).
The examiner further states at pages 4 and 5:
Example[s] 5 and 10 of Ostensen describes Ostensen's
process steps wherein a perfluorocarbon emulsion is administered to
a mammal. Ostensen then teaches imaging of a specific site such as
heart or kidney. Ostensen specifically expresses a steady rise in
enhancement of the contrast images (see col. 39-40). As described
by Ostensen, this steady rise of resonance intensity is attributed to
an increase in microbubble size which is respectively caused by an
increase in temperature of at least 5 Deg C of the perfluorocarbon
liquid within the microbubbles of Ostensen. …[P]erfluorobutane,
perfluoropentane, perfluorohexane, and perfluoroheptanes are liquid
at room temperature, and that microparticles containing such
compounds increase in size when subject to ultrasound frequency.
… Ostensen discloses the use of targeted microbubbles comprising
an RGD ligand that are specific for myocardium.
The examiner concludes that θstensen meets all the elements of the
instant claims and therefore anticipates the claimed invention. Answer, page 5.
The examiner argues that, “there is [sic, are] no teachings in the specification that
excludes the formation of gas” in the liquid nanoparticles used in the claimed method.
Answer, page 9.
Appellants respond, arguing (Brief, page 4), “θstensen does not disclose any
methods at all that involve liquid nanoparticles. θstensen is concerned with the
behavior of gas microbubbles.” We agree, and therefore, do not find the examiner has
established a prima facie case of anticipation or obviousness on the evidence before us.
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