Appeal No. 1997-2830
Application 08/440,362
cholesterol, and the therapeutic function of alleviating the symptoms of maturity-onset
diabetes. Boynton, column 5, lines 44-50.
While we agree with the examiner that Boynton establishes evidence of the
application of chromic tripicolinate to reduce hyperglycemia and stabilize the level of
serum glucose in a human, we find that the disclosure of Boynton is limited to
administration of chromic tripicolinate in a dosage range “corresponding to about 10 to
about 500 micrograms” of chromium tripicolinate per day. Boynton, column 4, lines 45-69.
In our view the examiner has failed to provide evidence which establishes a prima
facie case of unpatentability based on obvious, as we do not find that the examiner has
established that Boynton describes or suggests administration of a chromic tripicolinate
dosage range of between about 1,000 and 10,000 micrograms per day of chromium as
synthetic chromic tripicolinate to reduce hyperglycemia and stabilize the
level of serum glucose in humans.
We find it unnecessary to reach the rebuttal evidence of
appellant as we find the examiner has not met the burden of
setting forth a prima facie case of unpatentability based on
obviousness. In re Oetiker, 977 F.2d 1443, 1446, 24 USPQ2d
1443, 1445 (Fed. Cir. 1992), In re Geiger, 815 F.2d 686, 688, 2
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