Appeal 2006-2945
Application 10/041,958
According to Appellants, claim 31 calls for the “alleviation of specific
symptoms” (Br. 26). Krivan teaches that “[t]he host or patient is preferably
a mammal and most preferably a human or a pig. The primary diseases to
be targeted are bloody diarrhea, . . . in humans . . .” (Krivan, col. 10, ll. 43-
47, emphasis added). Accordingly Kirvan teaches the alleviation of one of
the diseases set forth in Appellants’ claims 31.
Accordingly, we affirm the rejection of claim 31 under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Krivan, Perera, Williams,
Queen and Engelman.
Claim 32:
Claim 32 depends from and further limits the effective dosage of
claim 26 to one that prolongs survival. As discussed above, Krivan teaches
the treatment and prevention of SLT related diseases. More specifically,
Krivan teaches that
the invention encompasses a pharmaceutical composition for
the prevention, amerlioration, or treatment of disease in a
human or animal caused by SLT or by bacteria that produce an
SLT. The composition comprises, in a carrier, an effective
amount of the IgG or antibodies of the invention for such
prevention, amerlioration, or treatment.
(Krivan, col. 10, ll. 57-64.) While Appellants assert that claim 32 requires
an amount that prolongs survival (Reply Br. 12), absent evidence to the
contrary, to which there is none, we find that by treating or preventing SLT
related disease survival is prolonged.
Accordingly, we affirm the rejection of claim 32 under 35 U.S.C.
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