Appeal 2007-1820
Application 10/659,408
baseline range representing said condition being under control in said
subject.”
We agree with Appellants (see supra at p. 6; Reply Br. 2) that, in
Moilanen’s study which looked at levels of NO in healthy persons and
patients with asthma and alveolitis (Moilanen, at [0029]), a “baseline range
representing said condition being under control in said subject” was not
established (Claim 18). However, the purpose of this study was to establish
that lung inflammation was associated with elevated levels of NO, not to
monitor the disease.
However, in a different study aimed at determining the effect of anti-
inflammatory treatment on asthma, Moilanen states “there was a significant
decrease in bronchial NO flux already after one week of anti-inflammatory
treatment” (FF 3; Moilanen, at [0030]). This indicates that Moilanen
compared NO levels in the same patient before and after treatment as a way
of assessing drug efficacy. In other words, Moilanen assessed a patient’s
“baseline range representing said condition being under control” as recited
in step (a) of claim 18. Following the description of this study, Moilanen
concludes that “the present method can be used to follow-up drug treatment
of inflammatory lung diseases and provide means to assess the efficacy of
such treatment” (FF 4; Moilanen, at [0031]). We agree with the Examiner
that, based on these teachings, “[i]t would have been apparent that a skilled
artisan would use a patient’s initial eNO measurements as a baseline for
comparison to ascertain whether treatment was effective” (Answer 7) as
required by claim 18. Appellants have not persuaded us that the Examiner
erred in this conclusion.
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