Appeal No. 2002-0534 Page 9
Application No. 08/551,326
requires the oft-difficult but critical step of casting the mind back to the time of
invention, to consider the thinking of one of ordinary skill in the art, guided only
by the prior art references and the then-accepted wisdom in the field.”).
Thus, we agree with Appellant that the references cited by the examiner
would not have suggested combining the specific elements of the claimed
products and methods, in the manner recited in the claims. The references
therefore do not support a prima facie case of obviousness. The rejection under
35 U.S.C. § 103 is reversed.
Other Issues
As Appellant points out (Appeal Brief, pages 15-16), Monteleone 19922
appears to be closer prior art than the Monteleone reference applied by the
examiner. Monteleone 1992 discloses administration of bovine cortex-derived
phosphatidylserine to human subjects and measurement of the effect on, inter
alia, cortisol levels after exercise. Monteleone 1992 concludes that “chronic oral
administration of phosphatidylserine may counteract stress-induced activation of
the hypothalamo-pituitary-adrenal axis in man.” Abstract.
Claim 25 in the instant application is directed to a “method for optimizing
muscle development during intense physical exercise which comprises ingesting
an anti-catabolic nutrient, soy derived phosphatidylserine, in an amount that
suppresses elevation in the level of cortisol release during the physical exercise.”
Monteleone 1992 appears to meet all the express limitations of this claim except
2 Monteleone et al., “Blunting by chronic phosphatidylserine administration of the stress-induced
activation of the hypothalamo-pituitary-adrenal axis in healthy men,” Eur. J. Clin. Pharmacol., Vol.
42, pp. 385-388 (1992), of record.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007