Appeal No. 2004-1391 Page 7
Application No. 09/811,654
in the weight range of 50 mg/kg body weight/day to 1,500 mg/kg body
weight/day.”).
It makes no difference, with respect to the anticipatory nature of the
disclosure, that Zehner did not recognize that the disclosed method produced
this effect. See In re Woodruff, 919 F. 2d 1575, 1578, 16 USPQ2d 1934, 1936
(Fed. Cir. 1990) (“It is a general rule that merely discovering and claiming a new
benefit of an old process cannot render the process again patentable.”); Schering
Corp. v. Geneva Pharms., Inc., 339 F.3d 1373, 1377, 67 USPQ2d 1664, 1667
(Fed. Cir. 2003) (“[I]nherent anticipation does not require that a person of
ordinary skill in the art at the time would have recognized the inherent
disclosure.”).
Appellant also argues that Zehner teaches that administration of tagatose
reduces the accumulation of glycosylated end products, which is said to slow the
aging process. Thus, Appellant argues, the patient being treated in Zehner’s
method “would not necessarily be a patient in need of treatment for promoting
cardiovascular health as required by the appealed claims.” Appeal Brief, page 4.
This argument is also unpersuasive. As we have interpreted them, the
claims are not limited to treatment of patients who have, for example, an
unusually low level of HDLs. Since “HDLs serve to sweep artery clogging
cholesterol from the bloodstream,” specification, page 1, it appears that even
healthy individuals would benefit from increased HDL levels and therefore are in
need of “promoting cardiovascular health.” There is no evidence of record that
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