Appeal No. 2003-1804
Application No. 09/896,209
In our view, persons having ordinary skill in the art would
have understood from Birkmayer I and Birkmayer II that NADH would
alleviate symptoms related to fatigue, sleep deprivation, and jet
lag. One of ordinary skill in the art at the time the invention
was made would have understood that Birkmayer II also suggests
administering NADH to any person to improve attentiveness and
reaction time. Therefore, it would have been prima facie obvious
at the time the claimed invention was made to alleviate the
effects of sleep deprivation, alleviate the effects of jet lag,
and/or enhance attentiveness or reaction time by administering
NADH.
Appellant’s arguments do not undermine the established prima
facie case of obviousness. Appellant argues that Birkmayer I
“fails to teach or suggest that the primarily mental symptoms of
jet lag and/or sleep deprivation, such as decreased attentiveness
or reaction time, could be successfully alleviated by the method
disclosed in the Birkmayer ’259 patent.” (Appeal brief, page 10,
second full paragraph). Appellant’s argument is unpersuasive.
Appellant’s claims do not require alleviation and treatment of
all effects of sleep deprivation or jet lag. Moreover,
Birkmayer I teaches alleviation of symptoms such as inability to
concentrate. (Birkmayer I, column 7, lines 38-48).
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