Appeal No. 2006-1163
Application 09/761,143
specification . . . particularly Dekazos[3] . . . [who] discusses Montmorency cherries and other
sour cherries and Table 2 clearly identified ‘cyanidin’ as a color pigment in the skin” (pages
1- 2). Appellants point out that the whole cherry, skin and pulp, was processed in specification
Examples 1 and 2 (id., page 2). Thus, appellants submit that “cyanidin clearly occurs in nature
and is in the naturally derived compositions described in the application,” and that “[t]he
hydrolyzed glycosylated anthocyanins were used to obtain enough for testing in the Examples”
(id.).
Appellants disclose in the written description in their specification that “the present
invention provides a natural cherry composition containing a mixture of anthocyanins,
bioflavonoids and phenolics for use as anti-inflammatory agents as a result of inhibition of the
cyclooxygenase enzymes” (page 1, ll. 5-10). Appellants acknowledge only Dekazos as reporting
“anthocyanin pigments in MONTMORENCY cherry as” including “cyanidin along with” certain
anthocyanins including anthocyanins 2 and 3 of specification FIG. 1, noting that these two
anthocyanins along with anthocyanin 1 of specification FIG. 1 and another anthocyanin “were
identified as main pigments in sour cherries” (id., page 2, l. 35, to page 3, l. 6). Appellants
further disclose “a method for inhibiting inflammation in a mammal which comprises:
administering at least one bioflavonoid, anthocyanin or phenolic compound isolated from a
cherry to the mammal,” and “a method of inhibiting inflammation in a mammal which comprises
administering cyanidin to the mammal” (id., page 5, ll. 28-36).
Appellants further specify “[t]he term ‘anthocyanins’ includes the color producing
compounds contained in cherries. For the purpose of this application this includes the aglycone
cyanidin” (id., page 5, l. 37, to page 6, l. 3), and that “Figure 1 shows the structure of the isolated
anthocyanins (colorants) from BALATON and MONTMORENCY cherries. The aglycon
cyanidin has a hydroxy group at position 3” (id., page 6, ll. 26-29). We find here that
specification FIG. 1 shows only the anthocyanins 1 through 3 we pointed to above.
Specification FIGs. 7 and 8 are dose-response curves for certain activities of “cyanidin” (id.,
page 6, ll. 4-15).
3 Elias D. Dekazos (Dekazos), “Anthocyanin Pigments In Red Tart Cherries,” 35 Journal of
Food Science 237-41 (1970).
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