Appeal 2007-2864
Application 10/747,798
between one-third and one-half of oral squamous cell carcinoma involves
HPV infection. Moreover, although not disclosing the results, Clayman did
test for HPV of the microdissected lesion (Slide 8 entitled “Special Protocol
Testing Summary Pre Treatment”). Thus, in those lesions in which HPV is
involved, the growth of a papillomavirus-transformed cell would be
inhibited. It is unnecessary that this result was intended or recognized.
It may be that not every instance in which the claimed composition is
administered by Clayman to a hyperplastic lesion would result in
anticipation. But, as discussed above, HPV involvement is common in such
lesions, establishing that anticipation would necessarily result. In Perricone
v. Medicis Pharm. Corp., 432 F.3d 1368, 1379, 77 USPQ2d 1321, 1328
(Fed. Cir. 2005), a claim to a method of preventing sunburn damage by
topically applying a composition to exposed skin was held to be anticipated
by a disclosure of a topical skin cream “because all skin surfaces are
susceptible to sunburn damage.” Anticipation was based on the skin’s
susceptibility to sunburn, not the requirement that, each time the prior art
topical cream was applied to exposed skin, sunburn was actually prevented.
Likewise, we do not find it necessary that HPV involvement be present in
every case. It is enough that human papillomavirus infection is known to be
associated with different cancerous and precancerous conditions. Thus, the
result would not be “occasional,” but a certainty in a certain percentage of
patients being treated using the composition required by the claimed method.
Appellant argues as to claim 4 that Clayman does not expressly or
inherently disclose the limitation “wherein the cell is a keratinocyte.” (Br.
8.)
9
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: September 9, 2013