Appeal 2006-3020
Application 10/109,374
LTB4 . . . has been implicated in a variety of diseases
which involve undesirable inflammatory responses in diverse
tissues, including infection, tissue injury and transient
ischemia. . . . In the case of reperfusion injury and
transplant rejection, LTB4 . . . [has] been causally
demonstrated to play a major role in the inflammatory
processes associated with these phenomena. In addition
LTB4 . . . plays a pivotal role in the development of
inflammatory bowel disease. . . . Thus a radiopharmaceutical
which binds to the LTB4 receptor at sub-therapeutic levels
should be able to rapidly detect inflammatory disease
processes throughout the body.
(Spec. 1: 0009.)
According to the Specification, the claimed “radiopharmaceuticals
bind in vivo” to the LTB4 receptor “on the surface of leukocytes which
accumulate at the site of infection and inflammation.” (Spec. 2: 0011.)
ISSUES ON APPEAL
The First Issue: 35 U.S.C. § 112, ¶ 1
The Examiner found the subject matter of claim 39 “was not
described in the specification . . . as to reasonably convey to one skilled in
the relevant art that the inventor(s), at the time the application was filed, had
possession of the claimed invention.” (Answer 3.) In part, the Examiner’s
rationale is as follows:
The recitation . . . that the LTB4 receptor ‘comprises
an aryl or heteroaryl ether’ was not described in the
specification. While the specification describes a large genus
of compounds, some of which may fall under the broad
terminology . . . ‘comprising an aryl or heteroaryl alkyl
ether’ there is no specific description . . . to show that
Appellant[s] envisioned such a subgenus of compounds . . .
which must have such a chemical group. . . . The limited
number of compounds which may coincidentally fall within
3
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