Appeal No. 2007-1080
Application No. 10/790,658
record before, we vacate the rejection and remand to the Examiner to
reconsider the enablement issue.
OBVIOUSNESS UNDER 35 U.S.C. § 103
We find that Milgram is more pertinent prior art than any of the
references now cited by the Examiner under the § 103 rejection. Upon
remand, the Examiner should consider whether a § 103 rejection is
appropriate in view of Milgram alone and/or combined with Borbe and
Billiau. We provide the following discussion as guidance.
Milgram describes the use of L-deprenyl for treating immune system
dysfunction (abstract; col. 2, ll. 60-64). L-deprenyl – also known as
selegiline3 – is a selective monoamine oxidase B (MAO-B) inhibitor (col. 1,
ll. 15-16). Immune system decline associated with aging is described as
specific target for L-deprenyl therapy (col. 2, ll. 24-26; col. 2, l. 68 to col. 3,
l. 4). This indication is also claimed by Appellant in claims 36 and 59.
Milgram also describes that administration of L-deprenyl improves
the immune response to an antigen (tetanus toxoid) challenge (col. 8-9,
Example 8). Instant claims 39 and 62 cover this same indication.
However, Milgram does not disclose the use of the claimed L-
deprenyl metabolite, desmethyl-selegiline, to treat immune system
dysfunction or to improve the immune response to an antigen.
Borbe (abstract; pp. 135-36) teaches that the MAO-B inhibitory
activity of desmethyl-selegiline is “nearly equipotent to selegiline [L-
deprenyl] after multiple oral administration.” In view of Borbe’s teaching
3 The Merck Index, 12th Edition, 1448 (1996).
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