Appeal No. 1996-3159
Application No. 08/068,480
"physic energizer." Where the examiner's case falls apart,
however, is in his attempt to account for the requirement in
claim 4 that the active agent is venlafaxine.
In stating the rejection, the examiner only mentions that
venlafaxine is a known anti-depressant. This is correct. (See
page 10, line 22 - page 11, line 15 of the specification).
However, the fact that venlafaxine may be a known anti-depressant
does not mean that Theeuwes describes its use as the active agent
in the controlled-released or sustained-released dosages of that
invention. Manifestly, the examiner has not established that
Theeuwes mentions venlafaxine by name. Nor has the examiner
begun to establish that Theeuwes describes venlafaxine under the
"principles of inherency." The open ended description of active
agents in Theeuwes which includes drugs in general and "psychic
energizers" specifically does not mean that Theeuwes describes
each and every possible compound which meet those descriptions.
Absent a fact-based explanation from the examiner as to why
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