Appeal 1997-3391
Application 08/212,578
Eichel and Tamás. Again, we disagree. Lobisch suggests the
administration of flupirtine over several doses during a single
day. Thus, Lobisch is able to recommend 3 doses per day of a
capsule or tablet having 50 mg to 200 mg of active ingredient,
i.e., flupirtine (col. 3, lines 28-30). A person having ordinary
skill in the art would immediately recognize the benefit of the
use of a sustained-release system to spread administration of
flupirtine over time while securing the advantages recognized by
Eichel and Tamás.
Applicants maintain that the prior art does not suggest that
side-effects, and in particular sedative side-effects, would be
minimized with a sustained-release system. The CCPA has provided
a complete answer to applicants' argument. In re Klosak, 455
F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972) (an inventor must
show that the results the inventor says are obtained with the
invention are actually obtained with his invention). The fatal
flaw in applicants' argument is that there is no evidence in the
record that administration of flupirtine with a sustained-release
system avoids sedative side effects. In fact, Lobisch suggests
that certain side effects were not found in certain experiments
involving flupirtine (Lobisch, col. 2, lines 3-6). We do not
know the basis for applicants' assertion in the specification
that sedative side-effects are reduced. To the extent that the
assertions in the specification are those of an "expert," we
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