Appeal No. 2003-0865 Page 5
Application No. 09/300,789
Regarding any putative evidence of prevention [of] the onset of
Alzheimer’s disease, such cannot be forthcoming because there is
no time limit for the onset of the disease. That is, the disease can
arise at any time after any experimentally designated time limit.
Id., page 3.
We reverse the examiner’s rejection. First, we disagree with the
examiner’s position that, since “the disease can arise at any time after any
experimentally designated time limit,” preventing the symptoms of Alzheimer’s
disease cannot be proven by experimental evidence. We agree instead with
Appellants that “a sufficient delay constitutes prevention.” Appeal Brief, page 6.
That is, if the symptoms of Alzheimer’s disease are delayed sufficiently that the
individual dies before the symptoms manifest themselves, the symptoms of
Alzheimer’s disease have been effectively prevented.
In addition, even if the examiner’s interpretation was correct, the rejection
is improper for another reason: the claims are not directed to a method of
“preventing” the symptoms of Alzheimer’s disease; they are directed to a method
of preventing or delaying the onset of those symptoms. Thus, the claimed
method is operative if it functions to either prevent or delay the onset of
symptoms. The examiner has not asserted that the claimed method does not
function to delay the onset of Alzheimer’s disease symptoms. Therefore, the
method is not inoperative. The rejection under 35 U.S.C. § 101 is reversed.
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