Appeal 2007-4007
Application 90/006,954
serves to distinguish claim 3 from the daily therapy of Probiodrug was, in
fact, an inherent benefit of that therapy.
We find the anticipation rejection over the Probiodrug publication to
be supported by a preponderance of the evidence of record on appeal.
Anticipation by the Villhauer published application
Villhauer is also interested in regulating the inactivation of GLP-1 by
regulating dipeptidyl peptidase IV (which Villhauer labels DPP-IV) in
mammalian systems to treat diabetes and related conditions. Villhauer calls
the DPP-IV effectors "inhibitors" since their effect is to inhibit DPP-IV
(Villhauer 1). Villhauer also contemplates daily doses, beginning with a
small dose that is increased until an optimal dosing level for the patient is
determined (Villhauer 19-20).
OSI again stresses the difference in the effect disclosed in Villhauer
versus the effect now claimed. OSI also again urges that Villhauer teaches
an acute treatment. We again find the reference is not so limited. Villhauer
expressly describes a program of repeated doses of the inhibitor in a
mammal. Villhauer also describes therapeutic effectiveness in treating
diabetic symptoms.
Although the Villhauer publication describes a different biological
mechanism for the benefits it describes, we cannot read the reference to
exclude other biological effects, including those now claimed. Again,
Villhauer teaches inhibitors targeting the same enzyme (DP IV) in the same
pathway (GLP-1 inactivation) in the same patients to relieve diabetes-related
symptoms. In the absence of any evidence to the contrary, we find that the
inhibitors must inherently have the same effect that is now claimed for them.
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