Appeal No. 95-5133
Application 08/135,523
been established, the burden of going forward shifts to the appellants. In re Piasecki, 745 F.2d. 1468,
1472, 223 USPQ 785, 788 (Fed. Cir. 1984), In re Rinehart, 531 F.2d. 1048, 1052, 189 USPQ 143,
147, (CCPA 1976).
While conceding that vitamin B is a collective term for the naturally occurring pyridines:
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pyridoxine, pyridoxal and pyridoxamine, appellant urges that the combination of Merrill and
Remington's do not suggest the use of the claim designated pyridine derivatives for the treatment and
prevention of atherosclerosis and/or hyperlipidemia. (principal brief, page 4). More persuasive is the
evidence of record, in the form of the two declarations filed under 37 CFR §1.132 by Dr. Schneider.
In evaluating this evidence, particularly Tales 1 and 2, of the declaration filed October 11, 1994, copies
of which are attached to appellant’s principal brief, we find that the declaration evidence demonstrate
that the three natural ccurring pyridine derivatives demonstrate widely varying effects on the factors
associated with atherosclerotic and hyperlipidemia. Considered in the most favorable light, the facts
established by the examiner would have suggested that administration of any one of the three known
vitamin B components would have been expected to be result in substantially equal effectiveness in
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treating or preventing atherosclerosis. There is nothing of record, and the examiner points to no facts,
which would have suggested that the three components of vitamin B would have been expected to give
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