Ex Parte Parikh et al - Page 7

              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            

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