Appeal No. 1996-2436
Application 07/887,451
On consideration of the record, we shall not sustain this rejection.
Discussion
First, in rejecting claims 1 and 20 through 22 under 35 U.S.C. § 103, the examiner
relies on a combination of Amer and “admitted prior art in the specification” (Examiner's
Answer, page 3, line 6). According to the examiner, this passage in applicants'
specification, paragraph bridging pages 7 and 8, constitutes admitted prior art:
Several of the antioxidants, vitamins and minerals contained in
the formulation have been shown to inhibit the induction of cancer at
several stages in the multistage process. For example, B-carotene,
glutathione, cysteine, BHA, BHT, Vitamins A, C and E, as well as
selenium, inhibit the tumor initiation, promotion and progression
stages of cancer. The heretofore unrecognized synergistic effects of
BHA and Vitamin E, for example, may be related to the observations
that BHA inhibits tumor promoter-induced polyamine synthesis, and
that Vitamin E inhibits promoter-induced hyperplasia, thus leading to
a synergistic effect. Furthermore, Vitamins A, C and E, selenium,
BHA, BHT, and propyl gallate inhibit tumor initiation by counteracting
the covalent binding of carcinogen to DNA and the mutagenic effect
of carcinogens.
We disagree. The foregoing passage appears under the heading “SUMMARY OF THE
INVENTION” in the specification, and would not appear to constitute admitted or
acknowledged prior art. Rather, the foregoing passage constitutes part of the
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