Appeal No. 2004-0394 Page 7
Application No. 09/915,467
education monographs, videotapes and the like which may
describe the risks and benefits associated with taking the particular
drug.
Consistent with Elsayed’s emphasis on education, Elsayed
discloses (column 9, lines 21-29),
The drug is preferably supplied to the pharmacy (as well as the
patient) in packaging, such as individual blister packs, which
includes warnings regarding the risks associated with the drug, as
well as the importance of various aspects of the present methods
such as, for example, pregnancy testing and the use of
contraception (in the case of teratogenic drugs), and the dangers
associated with sharing the drug with others, among other aspects.
V. Long-felt need satisfied by another prior to appellant’s date of invention:
Appellant recognizes that the Decision states at page 10 “in our opinion, the
long-felt need was recognized and satisfied by another before the date of the
appellant’s invention[2].” Request, page 6. Nevertheless, appellant asserts (id.), “[t]he
DECISION fails to provide any support for this subjective factual assertion (the DECISION
fails to say exactly who satisfied this, and when).”
Initially, we note that appellant discloses (specification, page 5), “I have found
that one can make teratogenic pharmaceuticals more safe, by combining them as a unit
with a contraceptive. … In so doing, it minimizes the risk that a patient will become
pregnant while taking the teratogen.” As set forth on page 11 of the Decision, “Abrams
discloses a combination isotretinion – contraceptive composition.” As set forth on page
8 of the Decision (alteration original),
as discussed above, Abrams, recognized that “[i]sotretinion and analogs
and isomers used for the treatment of postular acne has a severe danger
2 We recognize appellant’s statement (Request, page 4, fn. 2), “the record has not addressed ‘the date of
[a]ppellant’s invention’; we deal here only with the date of constructive reduction to practice – the
application filing date (July 2001).” We note, however, that the date of invention is presumed to be the
filing date of the application until an earlier date is proved. See e.g., Bausch & Lomb, Inc. v. Barnes-
Hind/Hydrocurve, Inc., 796 F.2d 443, 449, 230 USPQ 416, 420 (Fed. Cir. 1986); Vas-Cath Inc. v.
Mahurkar, 935 F.2d 1555, 1562, 19 USPQ2d 1111, 1115 (Fed. Cir. 1991). Since there is no evidence on
this record regarding an earlier date of invention, we fail to see appellant’s point.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: November 3, 2007