Appeal No. 95-2220
Application No. 08/059,682
“effective to elevate the individual’s 25 hydroxyvitamin D
level to a level greater than 30-40ng/ml.” as required by
appealed claim 9.
With respect to appealed claim 11, since Barron fairly
suggests administering a combination of calcium and vitamin D
to an individual having PMS symptoms, it would have been
obvious to administer that composition to alleviate vascular
headaches, a common symptom of PMS.
In summary, the examiner’s rejection of the appealed
claims for obviousness based on disclosures in Thys-Jacobs
Yamato is reversed. A new rejection has been stated against
the appealed claims for obviousness based on the Barron UK
Patent.
This decision contains a new ground of rejection pursuant
to 37 CFR § 1.196(b)(amended effective Dec. 1, 1997, by final
rule notice, 62 Fed. Reg. 53,131, 53,197 (Oct. 10, 1997), 1203
Off. Gaz. Pat. & Trademark Office 63, 122 (Oct. 21, 1997)).
37 CFR
§ 1.196(b) provides that, “A new ground of rejection shall not
be considered final for purposes of judicial review.”
37 CFR § 1.196(b) also provides that the appellant,
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