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Author Topic: inherently anticipated?  (Read 1606 times)

calilaw

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inherently anticipated?
« on: 10-11-10 at 01:03 pm »

Hi all - looking for help.  Assume a compound is currently being used to treat a specific disorder, say cancer.  Inventor discovers that the compound acts on a specific target or cell type to achieve the effect of treating cancer (eg., the compound kills a specific type of cell).  Is a method of using the compound to kill that type of cell inherently anticipated by the earlier administration of the compound to treat cancer? 



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MYK

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Re: inherently anticipated?
« Reply #1 on: 10-11-10 at 05:39 pm »

It sounds like the new application is just disclosing the mechanism, whereas before they knew what the effects were but didn't know the specific mechanism.  So, I'd argue yes.

Is there another reason to kill that type of cell?  Another disease, perhaps?  Maybe you could argue a claim for the method of treatment for that illness.
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Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

klaviernista

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Re: inherently anticipated?
« Reply #2 on: 10-22-10 at 07:54 am »

I'm a little late to the party, but see MPEP 2112:

"I.      SOMETHING WHICH IS OLD DOES NOT BECOME PATENTABLE UPON THE DISCOVERY OF A NEW PROPERTY

“[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the dis­coverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999).
"
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