Appeal 2007-0852
Application 09/919,195
While Appellants rely on a specific structure in the Specification, the only
structure present in the Specification is found on pages 15-16, (Br. 10-11.). The
compound described on pages 15-16 of the Specification is stated as having
"RARβ agonist activity."1 Appellants have provided a specific definition of the
term "antagonist" in the Specification and have not indicated how the compound
described in the Specification at pages 15-16 as an "agonist" meets the definition
of "antagonist", as claimed.
While Appellants argue that the Specification discloses assays by which the
specific RAR modulating activity of a compound can be routinely determined, we
find it would require undue experimentation to determine which compounds
possess the claimed characteristics of an antagonist as defined throughout the
Specification. The claimed antagonist must be a retinoid receptor ligand that will
inhibit the activation of transcription by the retinoid receptor at a gene having an
appropriate retinoid receptor response element in the presence of an agonist of the
retinoid receptor. In addition the antagonist must be a compound having a
disassociation constant (KD) (the ligand concentration at which 50% of the RAR
receptors are complexed with the ligand) at an RAR receptor at least 10 times
greater than the KD for the binding of the same ligand to an RXR receptor
(Specification 5). The antagonist must be selected so that it is not specific to at
least one other RAR receptor subtype. Since Appellants have described no
compounds having the claimed antagonist activity, it would require undue
experimentation to discern them.
1 We note that the Examiner states that the only compounds which “fit within the bounds of the
instant claim 13 are the compounds/method of the US Patent #6,303,648” (Answer 5). This
application is a continuation of the cited patent. The compound is described in this patent
application as an agonist (Spec. 15-16), not as an antagonist as claimed.
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