Appeal No. 1996-2920
Application 08/238,214
flows from the teachings of the applied prior art.” Ex parte Levy, 17 USPQ2d 1461, 1464 (Bd. Pat.
App. & Int. 1990). The examiner has not established that the prior art consumption of a half liter of red
wine per day would provide about 50 milligrams to about 1000 milligrams of trans-resveratrol as
recited in appellants’ claim 9. In the declarations of Toppo (page 3) and Kashyap (page 4) (both filed
on June 30, 1995; paper no. 9), it is explained that Siemann and Seigneur indicate that a person
consuming of a half liter of red wine per day would consume only about 0.3 milligram of trans-
resveratrol daily, and the examiner has not presented any evidence to the contrary.
For the above reasons, the examiner has not established a prima facie case of obviousness
based upon the evidence relied upon in the rejection.
The examiner and appellant also address Siemann, Seigneur and Arichi. For the following
reasons, even if these references are considered, the examiner has not established a prima facie case
of obviousness.
The examiner argues that Siemann discloses that the lipid lowering and HDL elevating effects of
trans-resveratrol were known in the art (answer, page 4). The portions of Siemann relied upon by the
examiner are Siemann’s statements (page 49) that Seigneur discloses that consumption of red wine
increases HDL-cholesterol and that Arichi found that resveratrol lowered lipids in rats with
hyperlipemia.
Contrary to the examiner’s argument, Siemann does not state that Seigneur discloses that trans-
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