Appeal No. 95-5133
Application 08/135,523
old product will not render that product patentable as such. In re Spada, supra. Thus, appellant's
arguments are not persuasive of error in the examiner’s determination that claim 14 does not patentably
distinguish over Merck. We affirm the rejection of claim 14 under 35 U.S.C. § 102(b).
The Rejection under 35 U.S.C. § 103
Claims 1, 5-8, and 10-12 stand rejected under 35 U.S.C. § 103 as obvious over Merrill in
view of Remington's.
The examiner cites Merrill as establishing a causal relationship between deficient vitamin B6
levels in mammals and atherosclerosis. He notes, particularly, page 144, last paragraph which states:
The first association of vitamin B and vascular disease was the observation . . .
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that monkeys fed a diet deficient in this nutrient developed atherosclerosis.
The examiner relies on Remington's as disclosing that pyridoxal is an active form of vitamin B .
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The examiner concludes (Answer, page 4) that:
it would have been obvious to administer pyridoxal for treating and/or preventing
atherosclerosis and/or hyperlipidemia associated with low vitamin B levels.
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It is the initial burden of the patent examiner to establish that claims presented in an application
for patent are unpatentable. In re Oetiker, 977 F.d. 1443, 1446, 24 USPQ2d 1443, 1445 (Fed. Cir.
1992). On the record before us, we agree that the examiner has made out a prima facie case of
unpatentability of the claimed subject matter. Where, as here, a prima facie case of obviousness has
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