Appeal of rejection of application claiming precipitate allegedly extracted from cancer tissue and serum allegedly containing the precipitate and producing antibodies when injected into cancer free animal. The claims were rejected for lack of utility. The examiner, in rejecting the claims, required proof of the utility alleged in the specification (curing cancer). The Patent Office Board of Appeals affirmed the rejection, stating that the allegations of utility “cannot be accepted as operative absent clear and convincing proof thereof. The compositions have been alleged to be cures for cancer, including human cancer, and in view of the art knowledge of the lack of a cure for cancer and the absence of any clinical data to substantiate the allegation, the claims include compositions directed to an apparently inoperative utility.â€
The court affirmed the rejection of the claims under 35 U.S.C. § 101 for lack of utility. The court required that when an alleged utility is of significant public importance and when the utility seems incredible based on the state of the art, the applicant must establish the asserted utility by “acceptable proof.†Thus, the court rejected the claims, finding that “the defect here is that in spite of the somewhat grandiose claims of appellant's specification, purportedly based on actual tests or experiments, not one iota of evidence has been produced tending even to show that tests were actually conducted.â€
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Created
Thursday 04 of September, 2008 22:05:27 GMT by Unknown
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Sunday 07 of September, 2008 16:08:01 GMT by Unknown