Appeal 2007-0628
Application 10/225,082
The Examiner characterizes Phanithi as “teach[ing] that caspase-3 is
elevated in cerebral ischemia” (id.), and concludes that
[i]t would have been obvious . . . to also analyze the test sample
of Martens et al for caspase-3 because Phanithi et al teaches
that caspase-3 is elevated in cerebral ischemia and it would
have been obvious to combine the two markers for the detection
of cerebral ischemia because both markers are known to be
elevated in cerebral ischemia and thus the detection of a second
marker provides further confirmation of cerebral ischemia.
(Id. at 6.)
Appellants argue that
the primary Martens et al. publication examines S100β levels in
serum and cerebrospinal fluid samples, while the secondary
Phanithi et al. publication detects cytoplasmic expression of
caspase-3, an intracellular protein, in histological sections of
brain tissue. . . . Nothing in either publication discloses or
suggests that, in the case of stroke or cerebral injury, it is
possible for S100β and caspase-3 to be measured in the same
type of sample.
(Br. 17.) Appellants cite the second declaration of Kenneth F. Buechler,
submitted May 11, 2005, as supporting their position.
We agree with Appellants that the Examiner has not made out a prima
facie case of obviousness. As Appellants point out, Martens discloses that
levels of S100β in serum or CSF were significantly higher in patients who
never regained consciousness (Martens, p. 2364, col. 2) while Phanithi
discloses that caspase-3 is expressed in brain cells after ischemia (p. 276,
col. 2 (“Staining was cytoplasmic . . .”)). Phanithi does not state that
caspase-3 was found in CSF or serum. Nor does Phanithi provide any other
basis for concluding that the caspase-3 detected by immunostaining would
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