Appeal No. 2006-0108
Application No. 09/980,620
As discussed above, by taking theanine along with caffeine, one falls
asleep faster than if one had consumed caffeine alone, and thus the reference
teaches treating the sleep disorder of sleeplessness, as defined by the instant
specification. Neither the specification nor the claim limits the reason that an
individual may be suffering from sleeplessness, and thus the claim reads on the
consumption of caffeine as the reason for the sleeplessness. Moreover, the
claim does not specify that the individual is only suffering from a sleep disorder,
thus it is irrelevant that the individual may have shaking and nervousness that
are also ameliorated by the theanine.
With respect to the obviousness rejection of claims 5-7, 11 and 16-18,
claim 5 is representative. Claim 5 is drawn to “[a] method of promoting sleep
comprising administering to a patient suffering from a sleep disorder a
composition comprising sugar, L-theanine, flavor and tartaric acid.
Appellants reiterate their arguments as to why Kakuda does not teach a
method of promoting sleep in an individual having a sleep disorder, and their
arguments as to why the combination is improper. See Appeal Brief, page 12.
Thus, I would affirm for the reasons set forth above with respect to the
anticipation rejection of claim 4, and the reasons set forth by the majority as to
the prima facie case of obviousness.
Appellants additionally argue that there are many causes of sleep
disorders, and that ingesting caffeine is not one of them. See id. at 15. But as
noted above, sleeplessness is defined as being a sleep disorder, and as
recognized by Kakuda, caffeine, a known stimulant, is also known to cause
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