Appeal No. 94-2113
Application 07/801,207
have used a mixture of a cholesterol lowering drug and an ACE
inhibitor to treat stabilize or cause regression of
atherosclerosis.
As with all general rules, there are exceptions. One
exception, among others, is where the mixture produces some
unexpected result. Applicants maintain that the mentioned
exception applies in this case because use of mixture of a
cholesterol lowering drug and an ACE inhibitor is said to produce
a "synergistic result" (Appeal Brief, page 8). The evidence upon
which applicants base their "synergistic result" argument
apparently is that on pages 41-46 of the specification (Appeal
Brief, page 8).
The examiner’s position with respect to the evidence is
unclear. The examiner’s finding that the combination of the same
amounts should produce at least an additive effect of 100%
reduction in the atherosclerotic symptoms (Examiner’s Answer,
page 6) is not necessarily supported by the evidence. We have
reviewed the data on pages 41-46 of the specification. The
evidence upon which applicant relies (which we observe is not in
the form of a declaration), does not make out a case for
application of the exception to the general rule noted above.
The claims include what might be characterized as both (1)
obvious subject matter (combinations where synergism has not been
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