Appeal No. 2002-0534 Page 4
Application No. 08/551,326
Discussion
Claims 15 and 25 are the broadest product and method claims on appeal,
respectively. Claim 15 is directed to a dietary supplement comprising “at least
100 mg of soy derived phosphatidylserine in combination with a physiologically
beneficial amount of a protein supplement.” Claim 25 is directed to a method of
optimizing muscle development “during intense physical exercise,” comprising
ingesting soy derived phosphatidylserine “in an amount that suppresses
elevation in the level of cortisol release during the physical exercise.”
The examiner rejected all of the claims as obvious in view of the combined
teachings of Fahey, Monteleone, Alekseyeva, Hager, Solgar, and Corti-PS. The
examiner characterized Fahey as “teach[ing] physical fitness regimens for
athletes. . . . In addition, Fahey et al. teach dietary regimens indicating that an
adequate diet associated with heavy training includes optimal protein intake.”
Examiner’s Answer, page 6. The examiner also relies on Fahey for its disclosure
of the cortisol-blocking effect of anabolic steroids (id.) and the drawbacks of
anabolic steroid use (id., pages 6-7).
The examiner concedes that Fahey “do[es] not teach administration of a
phosphatidylserine supplement during physical training to optimize muscle
development.” Id., page 7. The examiner relies on Monteleone for its teaching
of “administration of 50 or 75 mg of bovine cortex-derived phosphatidylserine to
humans, followed by an induction of physical stress comprising physical
exercise.” Id. The examiner notes that Monteleone found that “administration of
phosphatidylserine blunts the exercise-induced elevations in cortisol levels in the
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