Appeal No. 2006-2368 Page 4
Application No. 10/247,032
44 USPQ2d 1429, 1432 (Fed. Cir. 1997). As set forth by the examiner,
Rosenblum sets forth all of the limitations of claims 1 and 32, and the rejection of
claims 1-3, 10, 12, 13, 17, 19, 20 and 30-35 under 35 U.S.C. § 102(b) is
affirmed.
Appellant argues that Rosenblum does not “disclose the utility of such
compounds for treating vascular inflammation and do[es] not disclose treating a
subject having a blood level of c-reactive protein of greater than about 0.4
mg/dL,” and also “do[es] not disclose reducing vascular c-reactive protein (CRP)
levels in a mammal, as presently claimed in Claim 32.” Appeal Brief, page 6.
Erren, according to appellant, while disclosing that “plasma concentrations
of markers of inflammation are increased in patients with atherosclerosis,” does
not teach “treatment for vascular inflammation or atherosclerosis,” and does not
teach “substituted azetidinones and HMG-CoA reductase inhibitors (statins) for
the treatment of vascular inflammation.” Id. at 6-7.
Relying on Rosco, Inc. v. Mirror Lite Co., 304 F.3d, 1373, 64 USPQ2d
1676 (Fed. Cir. 2002), for the proposition that “the inherent claim limitation must
necessarily be present in the prior art reference, not merely probably or possibly
present, to support a rejection under §102(b),” appellants contend that as
demonstrated by Erren, “[a]ll patients with atherosclerosis do not have CRP
levels above 0.4 mg/dL,” asserting that limitation is just possibly present, but not
necessarily present. Id. at 7 (emphasis in original). Appellant also relies on
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