Appeal No. 2005-0545
Application No. 09/989,019
Moreover, genistein is not representative of all the
alternative isoflavones of Pugliese’s claims. Note that genistein
is four times the PDE inhibitor that its alternative daidzein is
(Kuppusamy, p. 1309, Table 2). Accordingly, Pugliese showing is not
commensurate in scope with the scope of the compositions and methods
claimed. “[O]bjective evidence of nonobviousness must be
commensurate in scope with the claims.” In re Kulling, 897 F.2d
1147, 1149, 14 USPQ2d 1056, 1058 (Fed. Cir. 1990).
We have considered all the evidence and arguments favoring
patentability and all the evidence and arguments to the contrary. In
our view, the examiner’s case for unpatentability of the claimed
subject matter under 35 U.S.C. § 103 is supported by the greater
weight of all the evidence. Accordingly, we affirm the examiner’s
final rejection of Claims 1-7 and 9-11 of Application 09/989,019
under 35 U.S.C. § 103 in view of the combined teachings of Soudant,
Koulbanis, Majeed, Sekiya, De Simone, Lotte, Kuppusamy, and Gennaro.
AFFIRMED.
New Ground of Rejection Under 37 CFR § 41.50(b)
THIS IS A NEW GROUND OF REJECTION. Method Claim 8 of
Application 09/989,019 is hereby rejected anew under 35 U.S.C.
§ 103 in view of the combined teachings of Soudant, Koulbanis,
Majeed, Sekiya, De Simone, Lotte, Kuppusamy, and Gennaro. In the
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