Appeal 2007-1820
Application 10/659,408
tailoring of modifications of the treatment . . . [as] recited in the claims on
appeal (Appeal Br. 7). We do not agree that the Examiner erred in the
findings or the conclusion that claim 18 is obvious over the cited prior art.
Kharitonov states that the exhaled NO “measurement is not specific,
and exhaled NO is increased in inflammation due to asthma, bronchiectasis
. . . , and respiratory tract infections. . . . This means that absolute values are
less important than serial measurements in individual patients” (FF 9;
Kharitonov, at 536, col. 1). An “absolute value,” as referred to by
Kharitonov, would be the type of exhaled NO curve generated for healthy
persons by Moilanen (FF 2; see Moilanen, at [0026] and Fig. 2 showing
curves for healthy and diseased persons). Kharitonov states that such a
curve would be inappropriate to monitor lung inflammation in asthmatics
because exhaled NO levels are affected by other types of inflammation.
Thus, Kharitonov recommends repeated serial measurements in the same
patient. Kharitonov does not expressly say that the serial measurements
should be of baseline normal activity, but it does describe monitoring
therapy until a normal level of exhaled NO is observed (FF 6; Kharitonov, at
535, col. 2) and to determine when therapy is adequate (FF 7; Kharitonov, at
536, col. 1). In this context and with Kharitonov’s emphasis that NO
measurements can “be performed repeatedly” (FF 8; Kharitonov, at 536, col.
1), it would be logical that baseline normal NO concentrations would be
determined in order to know when therapy was effective, i.e., efficacy is
achieved when the individual patient’s NO levels are restored to the patient’s
own baseline levels. Thus, we conclude that the Examiner was correct in
finding that Kharitonov teaches step (a) of claim 18 of “establishing a
baseline range of nitric oxide concentration in said exhaled breath, said
7
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