Ex parte Blythin

Board of Patent Appeals and Interferences

Sep 11, 1997

07852214 (B.P.A.I. Sep. 11, 1997)

Appeal No. 95-4487
Application 07/852,214
Application for patent filed May 29, 1992. 1
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 18
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
Ex parte DAVID J. BLYTHIN
______________
Appeal No. 95-4487
Application 07/852,2141
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On BRIEF
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Before JOHN D. SMITH, GARRIS and WARREN, Administrative Patent Judges.
WARREN, Administrative Patent Judge.
Decision on Appeal
This is an appeal under 35 U.S.C. ' 134 from the decision of
the examiner finally rejecting claims 1 through 9, all of the
claims in the application.
Appeal No. 95-4487
Application 07/852,214
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The appealed claims as represented by claim 1 are drawn to a
compound having a 1,8-naphthyridine nucleus which is substituted
by, inter alia, an optionally substituted phenyl moiety in the
-1- position, oxo in the -2- position, a nitrogen containing
heterocycle bonded through the nitrogen in the -3- position and
hydrogen or alkyl in the -4- position. According to appellant,
the claimed naphthyridine compounds or a pharmaceutically
acceptable salt thereof are useful in the treatment of allergy,
inflammation, hyperproliferative skin disease and peptic ulcers
(specification, e.g., page 3).
The references relied on by the examiner are:
Blythin et al. (Blythin) 4,794,116 Dec. 27,
1988
Teulon 2,567,720 Jan. 17, 1986
(published French Pat. Specification)
The examiner has rejected claims 1 through 9 on appeal under
35 U.S.C. ' 103 as being unpatentable over Teulon and Blythin.
We reverse.
Rather than reiterate the respective positions advanced by the
examiner and appellant, we refer to the examiner’s answer and to
appellant’s main and reply briefs for a complete exposition
thereof.
Opinion
We have carefully reviewed the record on this appeal and based
thereon conclude that the examiner has not established that the
claimed compounds and pharmaceutical salts of the appealed claims
are prima facie obvious over the combination of Teulon and
Appeal No. 95-4487
Application 07/852,214
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Blythin taken as a whole. We do not find in the record before us
any factual basis on which it would be reasonable to infer that
one of ordinary skill in this art would have been reasonably
motivated to interchange a nitrogen containing heterocycle for
the primary amino substituent in the -3- position of the 1,8-
naphthyridinyl compound of Teulon Example 6 where the vicinyl or
-4- position is unsubstituted. While the examiner points to
Blythin as showing the interchangeability of a primary amino
group with a heterocyclic group in that position in 1,8-
naphthyridinyl compounds which have the same utility, we are of
the view that, in this instance, the presence of the functional
group -Z R in the -4- position of Blythin’s compounds would, in2 6
the absence of evidence to the contrary, have reasonably
suggested to one of ordinary skill in this art that further
substitution, including cyclization, of the primary amino
substituent in the -3- position of the 1,8-naphthyridinyl
compound of Teulon Example 6 would require the presence of such
functional group in the -4- position. Cf. In re Payne, 606 F.2d
303, 315, 203 USPQ 245, 254-55 (CCPA 1979).
The examiner’s decision is reversed.
Reversed
Appeal No. 95-4487
Application 07/852,214
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JOHN D. SMITH )
Administrative Patent Judge )
)
)
)
BRADLEY R. GARRIS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
CHARLES F. WARREN )
Administrative Patent Judge )
Schering-Plough Corp.
Patent Department K-6-11990
2000 Galloping Hill Rd.
Kenilworth, New Jersey 07033-0530