Appeal No. 2004-1391 Page 6
Application No. 09/811,654
mg/kg body weight). See column 2, lines 47-50. As is apparent from the
description of the experiment, the tagatose was administered as a bolus:
Five . . . rats were administered by mouth a water solution of D-
tagatose at a dose of 1 g D-tagatose per kg body weight. . . . The
blood levels of glucose and insulin were determined initially and at
30, 60, and 90 minutes after administration of the doses.
Column 2, lines 47-56. Thus, the 1000 mg/kg dosage represented the daily
dosage in the disclosed experiment. Thus, Zehner discloses a method
comprising administering to a mammal a dose of tagatose effective to raise HDL
levels; this disclosure anticipates claim 1. Claims 2-6 fall with claim 1.
Appellant argues that the preamble’s recitation of a “method for promoting
cardiovascular health in a mammal” should be treated as a claim limitation, and
that “a person practicing the invention disclosed by Zehner et al. would not
necessarily and inherently promote cardiovascular health in the individual being
treated.” Appeal Brief, pages 3-4.
This argument is not persuasive. It is true that Zehner does not disclose
that administering D-tagatose at a dosage of 1 g/kg body weight increases HDL
levels or promotes cardiovascular health. Based on the evidence of record,
however, those skilled in the art would reasonably conclude that increased HDL
levels is an inherent effect of administering tagatose at a dosage between 50 and
1500 mg/kg body weight/day. See the instant specification, page 2, first
paragraph (“a method for promoting cardiovascular health in a mammal . . .
which comprises administering an efficacious amount of tagatose . . . to increase
the HDL level”) and second paragraph “Preferably, the tagatose is administered
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