Appeal No. 2004-1112 Page 4
Application No. 09/829,707
acarbose formulation to the patient, wherein such formulation does not include a
lipase inhibitor.”
The examiner rejected claim 43 as anticipated by Rosner, and rejected
claims 15-27 as anticipated by either Bremer or Patel.
1. Rosner
The examiner rejected claim 43 “under 35 U.S.C. 102(a) as being
anticipated by Rosner,” reasoning that Rosner “discloses a method of controlling
weight in a human comprising administering to the human acarbose at meals
with food containing carbohydrate, which anticipates the method of instant Claim
43.” Examiner’s Answer, pages 5 and 6.
Appellant argues that Rosner is not prior art under 35 U.S.C. § 102(a),
because it issued on May 14, 2002, after the filing date of the present application.
See the Appeal Brief, pages 3-4.1 The examiner’s response is that “the invention
of the Rosner patent was known or used by others in this country before the filing
date of the instant application, as suggested by the filing date of the Rosner
patent dated August 2, 1999.” Examiner’s Answer, page 6.
We agree with Appellant that Rosner is not available as prior art under 35
U.S.C. § 102(a). “The statutory language, ‘known or used by others in this
country’ (35 U.S.C. § 102(a)), means knowledge or use which is accessible to
the public.” Carella v. Starlight Archery, 804 F.2d 135, 139, 231 USPQ 644, 646
(Fed. Cir. 1986). As Appellant points out, Rosner was not accessible to the
1 Appellant also argues that Rosner does not anticipate because it does not disclose an acarbose
“formulation”, as that term is defined in the specification. This argument is addressed below to
the extent that it is relevant to the new ground of rejection entered in this opinion.
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