Appeal No. 2005-1516
Application No. 09/182,645
ginseng hot water extract contains lignin glycoside. Thus the examiner appears to
argue that the teas of Wang and Ning (ginseng water extracts) provide lignin glycoside
to the patient.
In our view the examiner has not met his burden of proof to establish a prima
facie case of anticipation or provided any evidence that a water extract of ginseng
contains a therapeutically effective amount of lignin glycoside. The process of
obtaining lignin glycoside as set forth both in the specification and in Tanuma 1 and 2 is
a multistep process. As pointed out by appellants, lignin glycoside is not present in a
hot water extract of a crude vegetative product (such as a pine cone, ginseng, etc.).
Reply Brief, page 4. Appellants argue that, Tanuma 1 discloses that the vegetative
“material is treated in the solvent (for example, hot water, ethanol, acetone). The
treating time is about 1 to 15 hours. The treated material is extracted in an alkaline
solution (0.1 to 1N sodium hydroxide, ammonium, etc.).” Tanuma 1, page 5, lines 5-12.
We find no indication that the teas of Wang or Ning are steeped for 1-15 hours and,
certainly, no teaching that the tea was extracted with an alkaline solution.
In addition, with respect to the teachings of Wang, we do not find that the
examiner has provided any evidence that the diabetes patients described therein are
patients having neural or cardiac tissue damage (claim 46), or that said patients suffer
from any of the conditions recited in claims 47-49. Thus, Wang does not reasonably
appear to describe each element of the claimed method.
While Ning, unlike Wang, treats patients suffering from ischemia (claim 47),
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