11498620 (B.P.A.I. May. 10, 2011)

Ex Parte Brooks et al

Board of Patent Appeals and InterferencesMay 10, 2011

11498620 (B.P.A.I. May. 10, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/498,620 08/03/2006 Peter C. Brooks TSRI 419.3 Div.1 1100 2387 7590 05/10/2011 Olson & Cepuritis, LTD. 20 NORTH WACKER DRIVE 36TH FLOOR CHICAGO, IL 60606 EXAMINER FETTEROLF, BRANDON J ART UNIT PAPER NUMBER 1628 MAIL DATE DELIVERY MODE 05/10/2011 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte PETER C. BROOKS and DAVID A. CHERESH __________ Appeal 2010-004707 Application 11/498,620 Technology Center 1600 __________ Before DEMETRA J. MILLS, RICHARD M. LEBOVITZ, and MELANIE L. McCOLLUM, Administrative Patent Judges. McCOLLUM, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to an angiogenesis inhibition method. The Examiner has rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Claims 21 and 35 are on appeal (App. Br. 1). The claims have not been argued separately and therefore stand or fall together. 37 C.F.R. § 41.37(c)(1)(vii). Claim 21 is representative. Appeal 2010-004707 Application 11/498,620 2 Claims 21 and 35 read as follows: 21. A method for inhibiting angiogenesis in a solid tumor or solid tumor metastasis tissue comprising administering to the tissue a composition comprising an angiogenesis-inhibiting amount of an organic peptidomimetic ανβ3 antagonist in a pharmaceutically acceptable carrier, wherein the antagonist molecule is an organic peptidomimetic compound represented by the formula (I) . . . wherein the organic peptidomimetic ανβ3 antagonist is administered in conjunction with chemotherapy. 35. The method of claim 21 wherein the organic peptidomimetic compound is represented by the formula: . Claims 21 and 35 stand rejected under 35 U.S.C. § 103(a) as obvious over Goodman, 1 as evidenced by Folkman, 2 in view of McKearn 3 (Ans. 3). The Examiner relies on Goodman for teaching “a method of treating tumor induced angiogenesis or inhibiting metastasis of a tumor comprising administering to a patient in need thereof a therapeutically effective amount of a compound that acts as an integrin inhibitor” (id.). In particular, the Examiner finds that Goodman “teaches a compound referred to as 3-phenyl- 3-(6-(3-(pyridine-2-ylamino)propoxy)-lH-indol-3-yl)propanoic acid which 1 Goodman et al., WO 01/58893 A2, Aug. 16, 2001. The Examiner relies on its U.S. counterpart, Wiesner et al., US 6,743,810 B2, Jun. 1, 2004, as evidence of what Goodman discloses (Ans. 3). 2 Judah Folkman & Yuen Shing, Angiogenesis, 267 J. BIOL. CHEM. 10931- 10934 (1992). 3 McKearn et al., WP 00/38665 A2, Jul. 6, 2000. Appeal 2010-004707 Application 11/498,620 3 appears to be 100% identical to the currently claimed species of claim[] . . . 35” (id.). The Examiner also finds: while [Goodman does] not specifically teach that the solid tumor is undergoing neovascularization, the claimed limitation does not appear to result in a patentable difference because as evidenced by Folkman et al., tumor growth and metastasis are angiogenesis dependent, wherein a tumor must continuously stimulate the growth of new capillary blood vessels for the tumor itself to grow. (Id. at 3-4.) The Examiner relies on McKearn for teaching “a method of treating a mammal with a therapeutically effective amount of a combination of an integrin antagonist and an antineoplastic agent” (id. at 4). In particular, the Examiner finds that McKearn “teaches that the method involves the treatment of a neoplastic disorder such as cancer, wherein a therapeutically effective amount of an integrin antagonist and an antineoplastic agent such as doxorubicin or cisplatin is administered to a mammal in need of such treatment” (id.). The Examiner concludes that it would have been obvious to combine the teachings of the references so as to administer a compound which acts to inhibit an integrin, e.g., integrin antagonist, as taught by [Goodman] in combination with a chemotherapeutic agent . . . because those of skill in the art recognize, in view of the teachings of McKearn et al, that integrin antagonists and chemotherapeutic agents were well- known pharmaceutical combinations for the treatment of neoplastic disorders such as cancer. (Id.) Appeal 2010-004707 Application 11/498,620 4 ISSUE Does the evidence support the Examiner’s conclusion that it would have been obvious to administer Goodman’s integrin inhibitor in conjunction with chemotherapy? FINDINGS OF FACT 1. Goodman discloses indol-3-yl derivatives that are integrin inhibitors and can be used for combating various conditions including tumors “or in the event of pathological actions which are maintained or propagated by angiogenesis” (Goodman, Abstract). 2. McKearn discloses “methods to treat or prevent neoplasia disorders in a mammal using a combination of an integrin antagonist and an antineoplastic agent” (McKearn, Abstract). 3. In particular, McKearn discloses that “[i]ntegrin antagonists may be used in conjunction with other treatment modalities, including, but not limited to . . . chemotherapy” (id. at 133: 3-6). ANALYSIS Goodman discloses indol-3-yl derivatives that are integrin inhibitors and can be used for combating tumors (Finding of Fact (FF) 1). McKearn discloses using integrin antagonists in conjunction with chemotherapy (FF 3). For the reasons stated by the Examiner, we agree that it would have been obvious to use Goodman’s compounds in conjunction with chemotherapy in order to combat tumors because it is undisputed that each was a well-known treatment for neoplastic disorders such as cancer (Ans. 4). In addition, Appellants’ arguments do not persuade us that there would not have been a reasonable expectation for success. In particular, we Appeal 2010-004707 Application 11/498,620 5 do not agree that McKearn “provide[s] nothing more than an invitation to experiment” (App. Br. 8). On the contrary, McKearn teaches the use of integrin antagonists in conjunction with chemotherapy (FF 3). That McKearn’s disclosure is broad does not by itself provide evidence that its teachings would be given little to no credence. CONCLUSION The evidence supports the Examiner’s conclusion that it would have been obvious to administer Goodman’s integrin inhibitor in conjunction with chemotherapy. We therefore affirm the obviousness rejection. TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED MLM cdc