Appeal No. 96-3923
Application 08/309,790
We cannot agree with the examiner's assertion that the
"method" of Fuller is the "same" as that being claimed in
independent claim 1. Independent claim 1 sets forth:
A method for reducing the incidence of
tobacco smoking by simulating respiratory
tract sensations . . . whereby the
respiratory tract sensations created by
said irritant simulate those created by
tobacco smoke to reduce the need of the
user to smoke tobacco. [Emphasis ours.]
It is thus clear that the method set forth in independent
claim 1 is directed to the process of using an irritant such
as capsaicin to reduce the smoking of tobacco by a user.
While both Fuller's method and the method defined by
independent claim 1 include the steps of repeatedly inhaling
an irritant such capsaicin, Fuller neither teaches nor
suggests the use of this irritant to reduce the need of a user
to smoke tobacco. Instead, Fuller's method is directed to the
measurement of bronchoconstrictor response in humans after an
irritant such as capsaicin has inhaled by a user. Inasmuch as
35 U.S.C. § 100(b) expressly recognizes "a new use of a known
process," the particular use to which the process is directed
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