Appeal No. 2003-1804
Application No. 09/896,209
Appellant further argues that “neither the Langsjoen patent
nor the Bioactive Nutrients website even mention NADH or NADPH,
they thus provide no teaching, suggestion nor [sic] motivation
for one of ordinary skill in the art to practice the method
of the Birkmayer ’259 patent to alleviate effects of sleep
deprivation and jet lag, or to enhance attentiveness and/or
reaction time in an individual.” (Appeal Brief, page 10, third
full paragraph). Bioactive Nutrients teaches that lack of
L-Carnitine causes fatigue. (Bioactive Nutrients). Langsjoen
teaches that Q10 is used to alleviate fatigue and malaise.
(Langsjoen, column 3, lines 1-3). Birkmayer I and Birkmayer II
teach that NADH gives energy and alleviates fatigue. It would
have been prima facie obvious to one skilled in the art at the
time the invention was made to combine compositions useful for
the same purpose to alleviate common symptoms.
Finally, appellant argues that “the enhanced attentiveness
was not taught nor [sic] suggested in the prior art, and thus
the method of the present invention has lead to ‘surprising
beneficial results.’” (Appeal Brief, page 11, first paragraph).
The record suggests the opposite. Birkmayer II teaches that NADH
“energizes both body and brain activity, improves alertness,
concentration, emotion, drive, hormone secretion and overall mood
enhancement.” (Birkmayer II, page 23, fourth paragraph).
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