Appeal No. 2007-0531 Page 14
Application No. 10/341,679
Isner and Tischer a person of ordinary skill in the art would have had a
reasonable expectation of successfully inducing collateral blood vessel formation
in the heart with this method of treatment.
Accordingly, we conclude that claims 1-4, 6, 10, 12, 19, 20 and 22 are
prima facie obvious under 35 U.S.C. § 103 over the combination of French, Isner
and Tischer.
Claims 13-18
The combination of French, Isner and Tischer is discussed above. While
this combination of references teaches replication-deficient adenoviral vectors,
they do not specifically describe the replication-deficient adenoviral vectors set
forth in Appellants’ claims 13-18. Kovesdi, however, teaches multiply replication
deficient adenoviral vectors as set forth in Appellants’ claims 13-18. According to
Kovesdi, these multiply replication deficient adenoviral vectors are useful in gene
therapy applications, and allow for the insertion and expression of larger
fragments of foreign DNA than singly replication deficient adenoviral vectors.
Therefore, we conclude that a person of ordinary skill in the art at the time
the invention was made would have found it prima facie obvious to substitute the
multiply replication defective adenovirus vectors taught by Kovesdi for the
replication defective adenovirus vector used in the method taught by the
combination of French, Tischer, and Isner. Accordingly, we find claims 13-18
prima facie obvious under 35 U.S.C. § 103 over the combination of French, Isner
and Tischer, as applied to claims 1-4, 6, 10, 12, 19, 20 and 22, and further in
view of Kovesdi.
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