Appeal No. 94-2477
Application 07/893,554
In responding to the examiner’s rejection, appellant argued at page 3 of the
Appeal Brief that
[a] surprising aspect of the present invention, then, is that at a level at
which adverse CNS effects are substantially eliminated, appetite
stimulation, in fact, is maximized. Certainly nothing in the art leads to that
conclusion.
However, as set forth above, Table 3 of Noyes provides a factual basis upon which a
conclusion can reasonably be reached that lowering the amount of delta-9-THC will, in
fact, maximize the effect of stimulating appetite while minimizing the central nervous
system effects of this compound.
Appellant also argues at page 3 of the Appeal Brief that it was unexpected that
reducing the dose of delta-9-THC to the claimed level would so effectively stimulate
appetite that some patients gained weight. Appellant relies upon his declaration filed
under 37 CFR § 1.132 filed on June 3, 1992, in support of this argument. In his
declaration, appellant discusses the results obtained from a pilot study of administering
delta-9-THC for appetite stimulation in AIDS patients. The clinical summary of that
study is attached to the declaration. As seen from page 18 of the clinical summary, the
study did not establish a correlation between appetite change and weight change, i.e.,
stimulating a patient’s appetite did not necessarily result in the patient gaining weight.
While the group having the biggest improvement in appetite and the largest weight gain
was the group which received the claimed dosage of delta-9-THC, appellant
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