Appeal No. 2005-0027
Application No. 09/777,874
finds that “the scope of the claims is not commensurate with the amounts recited in the
tables” of the Declaration and that “the examiner finds no unexpected or synergistic
effect of the combination of acetyl-carnitine and hydroxycitric acid.” Answer, pages 5
and 6.
Upon review of the Declaration we find the examiner to be only partially correct
with respect to his analysis of the data presented in the tables of the Declaration.
First, both the examiner and appellant appear to have focused on the wrong data sets in
the Declaration. The examiner and appellant have not reviewed the data with respect to
the closest prior art. The closest prior art in the present case is not the results
comparing hydroxycitrate and L-carnitine alone versus their combination, as highlighted
by appellant in the Brief at page 8, and as discussed by the examiner in the Answer,
page 5.
The closest prior art, is, rather, the combination described in Hastings of L-
carnitine and hydroxycitric acid, as compared to acetylcarnitine and hydroxycitric acid,
as claimed. Table 2 of the Declaration, for example, shows a comparison of a
composition including L-carnitine and Garcinia cambogia (comprising hydroxycitrate) as
compared to a composition including acetyl carnitine and hydroxycitrate. The final body
weight increase was 38.6 +3.1 versus 36.8 + 4.4, an essentially similar result. Also
present in the Declaration is a comparison of calcium hydroxycitrate and L-carnitine
versus calcium hydroxycitrate and acetyl L-carnitine. These values are 28.7 ± 4.4
versus 31.6 ± 3.9 for body weight increase. Very similar results for these compounds
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