Appeal No. 2001-1947
Application 08/333,202
oxidation of aloin resulting in a diacetylrhein which still has a total aloe emodin content
of approximately 3500 ppm at a concentration of 95%. Following the increase in
concentration to >98% by means of recrystallization which is required for medicinal
products, the residue of total aloe emodin still exceeds 1000 ppm. We find this
reference and process discussed in the Grimminger Declaration to be representative of
the method of preparing diacetylrhein by oxidation of barbaloin5 mentioned in Neuman.
The examiner argues that the opinion of Dr. Grimminger in the Declaration is
afforded less weight than objective data which can be independently evaluated.
Answer, page 7.
The Declaration of Grimminger must be properly weighed. Stratoflex, Inc. v.
Aeroquip Corp., 713 F.2d 1530, 1538, 218 USPQ 871, 879 (Fed. Cir. 1983)(“evidence
rising out of the so-called ‘secondary considerations’ must always when present be
considered en route to a determination of obviousness.”). The examiner finds the
statements presented in the Declaration of Grimminger to be merely opinion. We find,
however, that Dr. Grimminger's statements are supported by at least some factual basis
and evidence of the state of the art. Although factual evidence is preferable to opinion
testimony, such testimony is entitled to consideration and some weight so long as the
5 We take judicial notice of the fact that barbaloin is an alternative designation for
the aloin compound. See, Merck Index, 11th ed., Abstract 304, page 51, and Grant and
Hackh's Chemical Dictionary, page 26, indicating the aloins are named according to
their origin, (i.e. the plant they are derived from).
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