Appeal No. 2002-0534 Page 7
Application No. 08/551,326
See the Examiner’s Answer, page 7. Thus, the examiner concludes, those of
skill in the art would have found it obvious to replace the anabolic steroids
discussed by Fahey with Monteleone’s phosphatidylserine, in order to inhibit
cortisol levels without getting the dangerous side-effects of anabolic steroids.
See the Examiner’s Answer, page 8.
We do not agree that the combined disclosures of Fahey and Monteleone
would have made it obvious to administer phosphatidylserine as a replacement
of anabolic steroids, with a reasonable expectation of success. Monteleone
teaches intravenous administration of phosphatidylserine, while the instant
claims are directed to dietary supplements or methods comprising “ingesting”
phosphatidylserine. Thus, the examiner’s position implicitly assumes that
persons of skill in the art would have expected that the results seen by
Monteleone’s intravenous administration of phosphatidylserine would also have
been expected for oral administration. The examiner, however, has cited no
evidence to indicate that those of skill in the art considered oral and intravenous
administration of phosphatidylserine to be equivalents.
In addition, the examiner has not adequately explained how the cited
references would have made it obvious to combine phosphatidylserine with
protein supplements, as required by, for example, claim 15. The examiner points
to Fahey as disclosing the importance of “optimal protein intake” for athletes
engaged in heavy training. Examiner’s Answer, page 6. The pages of Fahey
cited by the examiner, however, are at best equivocal on the importance of
protein supplements. Fahey states that
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