Appeal No. 2001-1779
Application No. 09/398,898
US ‘926 teaches an organic extract of chickpea. US ‘926 further
teaches at column 8, lines 35 to 38 that the quantity of active
material is that which will produce the desired therapeutic effect.
There is no data or evidence of record that the chickpea extracts of
US ‘926 do not provide the amount of estrogenic activity as
instantly claimed.
We note, as pointed out by the examiner, that US ‘926 discloses at
column 1, lines 50-59 that “Cicer arietinum” (chickpea) can be extracted in
hexane, methanol, or acetone as an initial step in obtaining the steryl-β-D-
glucosides which are the ultimate object of the extraction procedure disclosed by
US ‘926. However, the examiner does not point to any facts or evidence which
establish that such an extract will necessarily have an estrogenic activity
equivalent to the claimed concentration of estradiol. Like WO ‘069, US ‘926 does
not disclose any examples wherein an organic extract of chickpea is actually
prepared. US ‘926 therefore does not provide factual evidence, such as starting
amounts of chickpea or chickpea extract, or amounts of extraction solvent, which
establish that any chickpea extract disclosed by US ‘926 will necessarily have the
claimed estrogenic activity.
We note further, as pointed out by the examiner, that US ‘926 discloses at
column 8, lines 35-38 that the quantity of active material is the amount calculated
to produce a therapeutic effect. However, the active ingredients of US ‘926 are
“steryl-β-D-glucosides” having hemostatic, vascular stabilizing and antishock
therapeutic activities. US ‘926 at column 1, lines 12-56. Thus, even if US ‘926 is
considered to disclose organic chickpea extracts having therapeutic properties, it
is not clear that a therapeutic extract prepared according to US ‘926 will
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