Appeal 2007-1040
Application 09/960,708
have a condition associated with unwanted angiogenesis, e.g., the
development of a skin tumor in response to TPA exposure. The method of
claim 46 comprises administering (e.g., topically) to the host (mouse) an
effective amount of a cyclosporin to inhibit (e.g., prevent from happening)
angiogenesis/vascular development in the host (mouse) having a condition
associated with the unwanted angiogenesis (e.g., the development of a skin
tumor in response to TPA exposure).
Jiang teaches that the topical application of an effective amount of
cyclosporin A or FK506 to a mouse suppressed skin tumor promotion
caused by exposure to TPA (Jiang 69, col. 2, ll. 18-20 and 23-24; Answer 4).
In addition, the Examiner relies on Flanagan to teach that FK506 and
cyclosporin A have similar properties. In our opinion, the Examiner has
presented the evidence necessary to establish a prima facie case of
obviousness.
In response, Appellants assert that Jiang fails to teach (1) that
papilloma formation in Jiang’s mouse model requires angiogenesis, (2) that
the ability of FK506 to inhibit papilloma formation in Jiang’s mouse model
is due to its anti-angiogenic activity, and (3) that FK506 can inhibit
angiogenesis (Br. 15). Appellants assert that Flanagan fails to make up for
the deficiencies in Jiang. We are not persuaded by Appellants’ arguments.
“[W]hen the question is whether a patent claiming the combination of
elements of prior art is obvious” the relevant question is “whether the
improvement is more than the predictable use of prior art elements according
to their established functions.” KSR Int’l Co. v. Teleflex Inc., 127 Ct. 1727,
1740, 82 USPQ2d 1385, 1396 (2007).
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