Appeal No. 2006-1036
Application No. 10/191,760
dosage levels, was effective in reducing whole blood clotting time from 15
minutes prevaccination to 7-9 minutes 72 hours after vaccination (Br. 9).
We also do not find that the examiner’s assertions based on the Brown
abstract that Example 8 is not predictive of canine studies, and thus
treatment of mammals generally, to be convincing. The portion of the
Brown abstract relied upon merely states that “[e]arly results from a single
dog injected with 5x1011vp/kg did not show any increase in FVIII levels or a
change in whole blot clot times.”
As noted by Appellants, the portion of the Brown abstract relied upon
by the Examiner was later refuted by a 2004 article by Brown (Brown 2004),
which corrects the earlier finding and supports the enablement of the claims
(Br. 8). The examiner, however, did not agree that the Brown 2004
reference refuted the earlier Brown abstract. The examiner first notes that
only Dog A had been treated with a dose of HC-Ad that was within the dose
permitted by the claims (Answer 9). The examiner then points to Figure 1B,
lowest line, which is asserted to show that no FVIII expression is seen in
Dog A at most time points.
As noted by Appellants (Br. 9), however, and not refuted by the
examiner, the Brown 2004 authors themselves stated in the abstract that
“[l]ow-level increases in FVIII activity were detected in all 3 HD-HNF-
cFVIII-treated dogs [which would include Dog A], which corresponded with
decreased whole blood clotting times.” Moreover, the Brown 2004
reference reports in the paragraph bridging pages 806 and 807 that “[a]ll
hemophilic dogs in this colony experience about 5 spontaneous bleeding
episodes per year,” but that “[n]o clinical bleeding events were observed in
8
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