Appeal No. 2005-0545
Application No. 09/989,019
reasonable expectation of success. Kuppusamy shows that genistein
is an excellent PDE (phosphodiesterase) inhibitor with at least four
times the PDE inhibition potency as alternative isoflavone daidzein
(Kuppusamy, p. 1309, Table 2). Sekiya teaches that the isoflavones
genistein and daidzein promote degradation of fat when
percutaneously administered (Sekiya, col. 1, l. 55, to col. 2,
l. 62). Soudant and Koulbanis teach that PDE inhibition is the key
to combating cellulitis and PDE inhibitors can be effectively
administered topically (Soudant, col. 1, l. 58, to col. 2, l. 24;
Koulbanis, col. 1, l. 34, to col. 3, l. 54). “Expected beneficial
results are evidence of obviousness of a claimed invention, just as
unexpected beneficial results art evidence of unobviousness.”
In re Skoll, 523 F.2d 1392, 1397, 187 USPQ 481, 484 (CCPA 1975).
Here, the prior art cited by the examiner would have led persons
having ordinary skill in the art reasonably to expect at least the
beneficial results Pugliese reports. Declarations that reported
results are unexpected must be supported by evidence. Assertions
and conclusory statements that results are unexpected cannot
themselves establish patentability, especially where the prior art
reasonably would have led persons having ordinary skill in the art
to expect all Pugliese’s objective evidence of unobviousness shows.
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