Ex Parte Firooznia et al

Patent Trial and Appeal Board

Aug 31, 2017

13469177 (P.T.A.B. Aug. 31, 2017)

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.
13/469,177 05/11/2012 Fariborz Firooznia 111890-83315 (27396 US1) 5932
112867 7590 09/05/2017
Hnffmann-T a RnrTie Tno
EXAMINER
C/O Gibbons P.C. MICHELSON, BEN S
One Gateway Center
Newark, NJ 07102 ART UNIT PAPER NUMBER
1625
NOTIFICATION DATE DELIVERY MODE
09/05/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
IPdocket@gibbonslaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FARIBORZ FIROOZNIA, PAUL GILLESPIE,
TAI-AN LIN, and SUNG-SAU SO1
Appeal 2015-005810
Application 13/469,177
Technology Center 1600
Before RICHARD M. LEBOVITZ, TAWEN CHANG, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
CHANG, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to certain
organic compounds, which have been rejected as obvious and on the ground
of nonstatutory obviousness-type double patenting. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify the Real Party in Interest as Hoffmann-Ea Roche, Inc.
(Br. 2.)
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STATEMENT OF THE CASE
Prostaglandin D2 (PGD2) “has been implicated in the pathogenesis of
allergic diseases such as allergic asthma and atopic dermatitis.” (Spec. 13.)
One of the PGD2 receptors is Chemoattractant Receptor-homologous
molecule expressed on T-helper type cells (CRTH2). It has been suggested
that CRTH2 plays a proinflammatory role in allergic diseases, and,
“[therefore, antagonists of CRTH2 are believed to be useful for treating
disorders such as asthma, allergic inflammation, chronic obstructive
pulmonary disease (COPD), allergic rhinitis, and atopic dermatitis. {Id.)
The present invention relates to “organic compounds useful for therapy
and/or prophylaxis in a mammal of an inflammatory disease or disorder, and
in particular to arylsulfonylamino-6,7,8,9-tetrahydro-5H-benzocyclohepten-
1-yloxy-acetic acids, their manufacture, pharmaceutical compositions
containing them and their use as CRTH2 antagonists.” {Id. 12.)
Claims 1 and 5—8 are on appeal. Claim 1 is illustrative and
reproduced below:
1. A compound of formula (I):
A, .A
HO (0,
wherein:
Ar is: -phenyl, unsubstituted or mono- or bi-substituted independently
with fluorine, chlorine, bromine, -CH(CH3)2, -CF3, -SO2CH3, -OCH3,
-C(0)CH3 or -pyridine-methyl; and
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R1 is hydrogen or lower alkyl,
or a pharmaceutically acceptable salt thereof.
(Br. 11 (Claims App.).)
The Examiner rejects claims 1 and 5—82 under 35 U.S.C. § 103(a) as
unpatentable over Blanc ’ 113.3 (Ans. 2.)
The Examiner rejects claims 1 and 5—8 on the ground of nonstatutory
obviousness-type double patenting as unpatentable over claims 1, 2, 4, 5, 12,
and 14—25 of Blanc ’781.4 (Id. at 9.)
I.
Issue
The Examiner rejected claims 1 and 5—8 under 35 U.S.C. § 103(a) as
obvious over Blanc ’113. The Examiner finds that Blanc ’113 discloses
CRTH2 antagonists having the formula reproduced below, where X, A, B,
Q, W, R1, R2, R3, R4, and R5 fall within certain recited groups:
2 The Examiner states in the Answer that claims 1—8 are rejected as obvious
and on the ground of nonstatutory obviousness-type double patenting. (Ans.
2, 9.) However, claims 2-4 have been cancelled. (Response after Final
Action 7 (Apr. 2, 2014).)
3 Blanc etal., WO 2010/018113 A2, published Feb. 18, 2010 (“Blanc
’113”).
4 Blanc et al., US 8,163,781 B2, issued Apr. 24, 2012 (“Blanc ’781”).
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Application 13/469,177
R'
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(Ans. 4—5.) The Examiner finds that Blanc ’113 further discloses preferred
species wherein X is a direct bond; Q, B, and W are carbon; A is nitrogen;
R1 is hydrogen; and R2, R3, R4 and R5 are all hydrogen or lower alkyl. (Id. at
5—6.) The Examiner finds that Blanc ’113 discloses one such preferred
species, compound 3-66(E), having the following formula:
Accordingly, the Examiner finds that the compounds of Blanc ’113
“differ from the instant compounds by one -CEE- group in the bicyclic ring
system” in that Blanc ’113 “teaches a six member cycloalkyl ring whereas
the instant claims encompass a seven member cycloalkyl ring,” as shown
below:
(Id. at 6.)
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The above figure reproduces the chemical formulas of claim 1 (left) and
Blanc ’113 (right) and highlights the portion of the formulas the Examiner
finds to be different. {Id. at 6—7; see also Br. 11 (Claims App.), Blanc ’113
Abstract.) Citing to Ahluwalia5 and Shiokawa6 to support the finding that
the claimed seven membered cycloalkyl ring is homologous to the six
membered cycloalkyl ring of Blanc ’113 which is expected to have similar
chemical properties, the Examiner concludes that a skilled artisan would
have had reason to add a single -CEE- methylene group to the six member
cycloalkyl ring in the bicyclic ring system of the formula disclosed in Blanc
’113, “with the expectation of retained properties and a successful result
being a new antagonist compound, and arriving at Appellants’] invention.”
(Ans. 7—8.)
5 V.K. Ahluwalia & Madhuri Goyal, A Textbook of Organic Chemistry
(2000) (“Ahluwalia”).
6 Shiokawa et al., U.S. Patent No. 5,387,710, issued Feb. 7, 1995
(“Shiokawa”).
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Appellants contend that Blanc ’113 does not provide any reason for a
skilled artisan to modify its compound to have arrived at the claimed
compound. (Br. 3—4, 6.) Appellants further contend that a skilled artisan
would be led away from modifying the core ring structure and that “Blanc
’113 fails to teach or suggest how to even make the instantly claimed
benzocycloheptene pharmacophore.”7 {Id. at 5.)
Appellants do not separately argue the claims, and we limit our
analysis to claim 1 as representative of the appealed claims. The issue with
respect to this rejection is whether a preponderance of the evidence of record
supports the Examiner’s conclusion that Blanc ’113 renders claim 1 obvious.
Findings of Fact
1. Blanc ’113 teaches compounds of formula (I), reproduced
below, pharmaceutically acceptable salts and esters thereof, as well as
methods of manufacturing and using such compounds and pharmaceutical
compositions:
7 Throughout this opinion we use the nomenclature tetrahyronaphalene and
benzocycloheptene where Appellants use such nomenclature. We note,
however, that the Examiner has pointed out the ambiguity/non-conventional
nature of these terms as used by Appellants. (Ans. 26—27.)
■R'
O
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(Blanc ’113, Abstract, 9:1—5.) Blanc teaches with respect to formula (I) that
X is a direct bond, oxygen, -S(0)2-, -NHCO- or -NHSO2-; and
wherein X is bonded to the ring containing Q and B by substitution of
a hydrogen atom of a ring carbon atom;
A, B, Q, and W, independently of each other, are carbon or nitrogen
with the proviso that: (1) B and Q are not both nitrogen, (2) W and A
are not both nitrogen, and (3) when A, B, Q or W is nitrogen, the
nitrogen is unsubstituted;
R1 is hydrogen or methyl;
R2 is selected from the group consisting of: (1) hydrogen; (2) halogen;
(3) lower alkyl optionally substituted by halogen; and (4) lower
cycloalkyl optionally substituted by lower alkyl;
R3, R4 and R5 are bonded to the ring containing A and W by
substitution of a hydrogen atom of a ring carbon atom; and R3, R4 and
R5, independently of each other, are selected from the group
consisting of: (1) hydrogen; (2) hydroxyl; (3) halogen; (4) nitro; (5)
cyano; (6) lower alkyl optionally substituted by halogen or hydroxyl;
(7) lower alkoxy optionally substituted by halogen; (8) lower
alkanoyl; (9) carbamoyl, lower alkylaminocarbonyl, or lower
dialkylaminocarbonyl; (10) lower alkylcarbonylamino; (11) lower
alkylsulfanyl or lower cycloalkylsulfanyl (12) lower alkylsulfmyl or
lower cycloalkylsulfmyl; (13) lower alkylsulfonyl or lower
cycloalkylsulfonyl; and (14) trimethylsilyl;
or alternatively, one of R3, R4 or R5 is hydrogen and the remaining
two of R3, R4 or R5 are bound together with the carbon atom to which
they are attached to form a ring of 5 or 6 carbon atoms.
(Id. at 9:6—10:20 (formatting altered for brevity).)
2. Blanc ’113 teaches that the compounds of formula (I) are
“antagonists at the CRTH2 receptor and may be useful in treating . . .
disorders associated with that receptor such as asthma.” (Id. at Abstract.)
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3. Blanc ’113 teaches an embodiment of its invention having the
following formula:
(Id. at 94, compound 3-66(E).) Compound 3-66(E) differs from a compound
encompassed by instant claim 1—i.e., a compound of formula (I) as recited
in claim 1 where Ar is -phenyl substituted with -pyridine-methyl and R1 is
hydrogen—by one -CEE- group in the bicyclic ring system, in that
compound 3-66(E) has a six member cycloalkyl ring whereas the instantly
claimed compound has a seven member cycloalkyl ring.
4. Shiokawa teaches
ethanolamine derivatives having gut selective sympathomimetic and
anti-pollakiuria activities and represented by the general formula
[I]:
wherein R1 is aryl or a heterocyclic group, each of which may be
substituted with halogen, etc.,
R2 is hydrogen, halogen, nitro, hydroxy, lower alkyl optionally
substituted with acyl, lower alkenyl optionally substituted with
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acyl, lower alkoxy optionally substituted with acyl, or amino
optionally substituted with acyl(lower)alkyl,
R3 is hydrogen, an N-protective group, or lower alkyl optionally
substituted with lower alkylthio,
n is an integer of 0 to 3, and
a heavy solid line means a single bond or a double bond,
provided that when n is 1, then
1) R1 is a condensed aromatic hydrocarbon group or a heterocyclic
group, each of which may be substituted with halogen, etc., and
the like,
and pharmaceutically acceptable salts thereof to processes for the
preparation thereof and to a pharmaceutical composition comprising
the same.
(Shiokawa, Abstract, see also id. at 2:10-46.)
5. Ahluwalia teaches the following as characteristics of a
homologous series:
(a) Different members of a homologous series are represented by a
general formula. For example, alkanes are represented by CnFhn+2.
(b) Every member of a homologous series is called homologue and
differs from its one higher or one lower member by a —CH2—.
(c) A general method of preparation can be adopted or all the
homologues of a series.
(d) All homologues of a series possess similar chemical properties
which are characteristics of the functional group of the series.
(e) They show different physical properties due to the difference in
their molecular weight.
(Ahluwalia 40.)
6. In discussing functional groups and homologous series,
Ahluwalia teaches:
Hydrocarbons are the backbone of organic compounds as all other
compounds are derived from them by substituting one or more atoms
of hydrogen by another atom or group (X here may be a halo, nitro,
HI R-X
*%■
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hydroxyl or carbonyl group). The properties of compounds ‘R—X’
depend on the nature of R which may be alkyl or aryl and ‘X’. If X
remains unchanged in a series of compounds given below, which
differ only in number of carbon atoms, we find that there is little
change in the chemical properties of compounds although their
physical properties like melting point, boiling point or density are
affected.
(Id. at 39.)
7. Ahluwalia teaches that “[c]ycloalkanes are cyclic aliphatic
compounds also known as alicyclic compounds” and that, “[l]ike alkanes,
the unsubstituted cycloalkanes form a homologous series having the general
formula CnH2n.” (Id. at 170.)
Analysis
We adopt the Examiner’s findings of fact and reasoning regarding the
scope and content of the prior art (Final Act. 3—9, 13—22; Ans. 2—8, 13—22,
24—35; FF1—FF7) and agree with the Examiner that claim 1 is obvious over
Blanc ’113. We address Appellants’ arguments below.
Appellants argue that
there is no teaching anywhere in [Blanc ’113], nor motivation,
which would guide one skilled in the art to add a single -CEb-
moiety at the precise position on the tetrahydronaphalene
bicyclic fused ring structure of Blanc ’113 to obtain the
compound of this invention having the property of being a
CRTH2 antagonist.
(Br. 4—6.) Appellants argue that “[i]t is not enough for the Examiner to
simply point out a difference. The Examiner must also point out where in
the art is there a teaching of the desirability for the change.” (Id. at 5.)
We are not persuaded. In Dillon, the Federal Circuit noted that,
if an examiner considers that he has found prior art close enough to the
claimed invention to give one skilled in the relevant chemical art the
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motivation to make close relatives (homologs, analogs, isomers, etc.)
of the prior art compound(s), then there arises what has been called a
presumption of obviousness or a prima facie case of obviousness. In
re Henze, 181 F.2d 196 .. . (CCPA 1950); In re Hass, 141 F.2d 122,
130 ... (CCPA 1944). The burden then shifts to the applicant, who then
can present arguments and/or data to show that what appears to be
obvious, is not in fact that, when the invention is looked at as a
whole. In re Papesch, 315 F.2d 381 . . . (CCPA 1963). The cases
of Hass and Heme establish the rule that, unless an applicant showed
that the prior art compound lacked the property or advantage asserted
for the claimed compound, the presumption of unpatentability was not
overcome.
In re Dillon, 919 F.2d 688, 696 (Fed. Cir. 1990). In this case, Blanc ’113
describes compound 3-66(E) which differs by a single -CEE- group in the
bicyclic ring system of the claimed formula (I) compound. (FF3, FF5—FF7;
Ans. 6—7.) Because the compound of Blanc ’113 is a homolog of the
formula (I) compound of instant claim 1 when R1 is H and Ar is pyridine
methyl, we find that the Examiner has established “a presumption of
obviousness or a prima facie case of obviousness” under the rubric set forth
in Dillon. That is, the desirability of making the claimed compound arises
from its structural similarity and thus presumed functional similarity to the
prior art compound of Blanc ’ 113.8
Moreover, the Federal Circuit has suggested that activities of the
claimed and prior art compounds may be relevant to obviousness. See
Dillon, 919 F.2d at 696 (“Some of the cited cases also contained language
8 With respect to Appellants’ argument that “[tjhere are many places on the
structure disclosed in the Blanc ’113 reference where one could add or
remove a single -CH2- methylene group” (Br. 4), we note and agree with the
Examiner’s finding that there are only limited locations in the core structure
disclosed in Blanc ’113 where a successive -CH2- group may be added to
create a homologue. (Ans. 24—25.)
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suggesting that the fact that the claimed and the prior art compounds
possessed the same activity were added factors in the establishment of the
prima facie case.”). Here, both the claimed compounds and compound 3-
66(E) are CRTH2 antagonists. (FF2; Spec. 12.) The common function
between the claimed compounds and compound 3-66(E) serves to further
support: the Examiner’s prima facie case for obviousness. Dillon, 919 F.2d
at 696.
Appellants argue that the claimed and prior art compounds are not
homologues because “a benzocycloheptene fused ring and
tetrahydronaphalene fused ring, while differing by a -CFE- group[,] do not
belong to any art recognized homologous series.” (Br. 6.) Appellants
further argue that “a skilled artisan would be led away from modifying the
core ring structure” because “[a] medicinal chemist would know that
increasing the ring size of the core would change the conformation of the
antagonist.” (Id. at 5.)
We are not persuaded. As the Examiner points out, Ahluwalia teaches
that unsubstituted cycloalkanes do form a homologous series having the
general formula CnH2n and further suggests that chemical properties of
compounds in a homologous series are expected to remain the same where
functional groups remain unchanged across the compounds. (FF6, FF7.) In
contrast, Appellants do not cite any persuasive evidence that the claimed and
prior art compounds would not be considered homologues, “Attorneys’
argument is no substitute for evidence.” Johnston v. IVAC Corp., 885 F.2d
1574, 1581 (Fed. Cir. 1989).
Likewise, Appellants have provided no persuasive evidence that a
skilled artisan would expect a change in core ring size to impact the
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compound’s function. The Examiner, however, has provided evidence
showing that, at least in some instances, changing the ring size in a
compound would not affect its functionality. In particular, Shiokawa shows
that certain ethanolamine derivatives containing differently sized rings in a
bicyclic ring system have the same gut selective sympathomimetic and anti-
pollakiuria activities. (FF4.)
Appellants argue that the Examiner’s reliance on Shiokawa and
Ahluwalia is misplaced, because “Appellants are not claiming a
benzocycloheptene per se, nor the universe of compounds comprising a
benzocycloheptene core,” but rather “a benzocycloheptene core and
surrounding functional groups useful as CRTH2 antagonists.” (Br. 5.)
Putting aside the fact that the claims are compound claims (and one
composition claim) that do not recite any particular function, we are not
persuaded because “expectation of success need only be reasonable, not
absolute.” Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1364 (Fed. Cir. 2007).
Again, Appellants have cited no persuasive evidence contradicting the
Examiner’s prima facie case that a skilled artisan would have had reason to
make compounds falling within claim 1, with a reasonable expectation of
success, based on the compounds’ structural similarity and homologous
relationship to, e.g., compound 3-66(E) of Blanc ’113.
The cases cited by Appellants, all of which precede the Federal
Circuit decision in Dillon, are inapposite. Burtner does not hold that
“addition of or omission of a -CFb- group at a specific point on a molecule”
is never sufficient to give rise to a rejection of obviousness. (Br. 7.) Rather,
Burtner correctly points out that the underlying question in cases involving
obviousness of chemical compounds is whether the compounds “are
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sufficiently similar from the standpoint of structural chemistry so that those
now claimed would be suggested to chemists from those disclosed and
would he expected to have like properties.” Ex parte Burtner, 121 U.S.P.Q.
345 (B.P.A.I. 1951). The Board panel in Burtner answered this question in
the negative in that particular case, in part because the prior art compounds
differed from the claimed compounds in the relative positions of the
functional or reactive groups. Id. This is not the situation before us.
Similarly, the panel in Fonken found that there is some question of
“whether a method for preparing the claimed compounds from the reference
compounds would be known to those skilled in the art,” and further found
that to arrive at the claimed compounds, an alkyl substituent would have to
be added at a position in the prior art compound that already has a hydroxyl
group, such that a secondary carbon atom would be converted to a tertiary
carbon atom. Ex parte Fonken, 133 U.S.P.Q. 691 (B.P.A.I. 1962). Indeed,
the panel emphasized that its decision is “restricted to the particular facts . . .
involved” and does not “imply that addition of a methyl group
indiscriminately at one of the several available positions in [the reference
compounds] would be patentable.” Id.
In Kaiser the claimed compound was phenylcyclopropylamine and the
prior art compound was naphthylcyclopropylamine. Ex parte Kaiser, 146
U.S.P.Q. 548 (B.P.A.I. 1964). While the prior art in Kaiser similarly
suggested that benzene and naphthalene are part of a homologous series,
there appeared to be evidence of record in Kaiser “showing the radical
difference in biological properties which sometimes results from the
substitution of a naphthyl for a pheny radical in medicinal compounds” and
no evidence that the claimed naphthyl compound would be expected to have
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the same activity as the prior art phenyl derivative. (Id.) Here, as discussed
above, the Examiner has cited to Shiokawa as evidence that compounds
containing a seven-carbon ring may reasonably be expected to have similar
activity as otherwise identical compounds containing a six-carbon ring,
while Appellants have only provided attorney arguments to support their
disagreement with these evidence-based facts. (See, e.g., Ans. 24; Br. 5;
FF4.)
Finally, Biel and Henze do not involve homologues at all. In Biel, the
prior art compound contained a cyclohexyl group, which is a six-carbon
ring, while the claimed compounds contained thienyl, pyridyl, or furyl
groups, which are ring structures containing sulfur, nitrogen, and oxygen
atoms, respectively. Ex parte Biel, 137 U.S.P.Q. 315 (B.P.A.I. 1962). The
panel also noted that the claimed compounds had functions not similarly
disclosed for the prior art compounds. (Id.) Henze supports the Examiner’s
conclusion of prima facie obviousness. Ex parte Henze, 83 U.S.P.Q. 167
(B.P.A.I. 1949). Although the panel in Henze correctly explains that there is
no law that holds that “because one chemical compound produces a certain
result (such as the therapeutic one), no new compound can be patented that
does not produce an unforeseen result,” Henze also states that,
[w]here the relation structurally of the old and the new
compounds is so close as to be merely that of members of the
same homologous series, and thus justify a reasonable
presumption that they would have similar properties,
patentability can be denied in the absence of showing that the
new compound possesses unexpected properties.
(Id.) In short, the particular facts of this case distinguish the case from the
Board opinions cited by Appellants in which the obviousness rejections
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relating to specific compounds were reversed based on specific evidence, as
discussed above.
In conclusion, we note but are not persuaded by Appellants’
arguments that Blanc ’113 fails to teach or suggest how to make the claimed
compounds and that the Examiner’s obviousness rejection is based on
improper hindsight. (Br. 5.) The Examiner explained in detail in the
Answer how a skilled artisan would have been able to make the claimed
compounds at the time of invention based on starting materials and methods
known in the prior art. (Ans. 27—29.) Appellants have not filed a reply brief
disputing this explanation. Indeed, the Specification states that “[t]he
compounds of the present invention can be prepared by any conventional
means.” (Spec. 142.) As to Appellants’ argument regarding hindsight, we
find as discussed above that the Examiner’s obviousness rejection is
properly based on the close relationship between the structures of the
claimed and prior art compounds rather than improper hindsight.
Accordingly, because the Examiner has established a prima facie case
of obviousness and Appellants have not provided any persuasive
contradictory or rebuttal evidence or arguments, we affirm the Examiner’s
rejection of claim 1 as obvious over Blanc ’113. Claims 5—8, which were
not separately argued, fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
II.
The Examiner rejected claims 1 and 5—8 on the ground of
nonstatutory obviousness-type double patenting over claims 1, 2, 4, 5, 12,
and 14—25 of Blanc ’781. The Examiner finds that the claimed compounds
are obvious homologues of the compounds recited in the claims of Blanc
’781. The Examiner finds that claim 1 of Blanc ’781 discloses a genus of
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compounds having the formula reproduced below where X, A, B, Q, W, R1,
R2, R3, R4, and R5 fall within certain recited groups:
(Ans. 10—11.) The Examiner finds that Blanc ’781’s claim 21 recites a
compound of claim 1 selected from a group consisting, among others, of
{5-[4-(5-Methyl-pyridin-2-yl)-benzenesulfonylamino]-5,6,7,8-tetrahydro-
naphthalen-l-yloxy}-acetic acid, which is the same compound as Example
No. 3-66(E) of Blanc ’113 discussed above with respect to the 35 U.S.C.
§ 103(a) rejection. (Id. at 12—13.) The Examiner notes that certain claims of
Blanc ’781 recite homologues of compounds recited in the claims on appeal
and concludes that,
[gjiven the high level of ordinary skill in the art, a person of
ordinary skill in the art would have been motivated to add or
remove a single -CH2- methylene group from the CRTH2
antagonist taught by [Blanc] ’781 with the expectation of
retained properties and a successful result being a new
antagonist compound, and arriving at Appellant’s invention.
(Id. at 13.)
Appellants do not separately argue the claims, and we limit our
analysis to claim 1 as representative. 37 C.F.R. § 41.37(c)(l)(iv). Likewise,
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we consider only those arguments made by Appellants in their brief;
arguments not presented in the brief are waived. Id. Appellants contend that
the Examiner’s obviousness-type double patenting rejection is based on the
same rationale as the obviousness rejection with respect to Blanc ’113,
namely that “compounds which include in their structure a
benzocycloheptene bicyclic fused ring are obvious homologues of
compounds which include in their structure a tetrahydronaphalene bicyclic
ring,” and therefore is flawed for the same reasons. (Br. 9.) We are not
persuaded for the same reasons set forth in our analysis of the obviousness
rejection above, and accordingly affirm the Examiner’s double patenting
rejection as well.
SUMMARY
We affirm the Examiner’s decision rejecting claims 1 and 5—8 as
obvious and as invalid for obviousness-type double patenting.
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
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