Appeal No. 2003-1804
Application No. 09/896,209
We have considered the applicant’s specification and claims,
the applied prior art, and the positions of the examiner and
appellant set forth in the examiner’s answer and appellant’s
brief respectively. The examiner also rejected the appellant’s
claims under 35 U.S.C. § 102, 35 U.S.C. § 103(a), and for double
patenting, over Birkmayer I alone. However, we need not reach
these rejections because we conclude that the combined prior art
teaching establishes the prima facie obviousness under 35 U.S.C.
§ 103(a) of the invention defined by Claims 1-33. Appellant has
presented no objective evidence of nonobviousness. Accordingly,
we affirm the examiner’s final rejection of all pending claims
under 35 U.S.C. § 103(a) in view of the combined prior art
teachings.
Discussion
“The PTO has the burden under section 103 to establish a
prima facie case of obviousness.” In re Fine, 837 F.2d 1071,
1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). Claims 1, 12, and 23
comprise administering to a human being an effective amount of
NADH or NADPH or a physiologically acceptable compatible salt of
NADH or NADPH. The Claim 1 method is effective for alleviating
the effects of sleep deprivation. The Claim 12 method is
effective for alleviating the effects of jet lag. The Claim 23
method is effective for enhancing attentiveness or reaction time.
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