Appeal 2007-0852
Application 09/919,195
amount effective to treat or prevent alveolar destruction. They further require that
such antagonist not be specific to at least one other RAR receptor subtype. The
term "antagonist" is defined in the Specification to have a very specific meaning,
i.e., 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. (Specification 6).
The Examiner has failed to show or explain where any of the cited
references disclose using an effective amount of an RARβ antagonist to treat or
prevent alveolar destruction. If such a teaching had been identified, then perhaps
the doctrine of inherency could be relied upon to shift the burden to Appellants to
show such a prior art RARβ antagonist was not specific to at least one other RAR
receptor subtype. But that is not the case here. (See Answer passim.)
In view of the above, the anticipation rejections are reversed.
CONCLUSION
The written description and lack of enablement rejections of claims 13-28
are affirmed. The anticipation rejections are reversed.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
Ssc
CARLOS A. FISHER
ALLERGAN, INC.
2525 DUPONT DRIVE
IRVINE, CA 92623
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