Appeal No. 2005-2593 16
Application No. 90/005,867
the combined teachings of Fahy, Scow, Umbreit and Pierpaoli. Claim 26 reads as
follows:
26. The kit of claim 25, wherein the amount of human growth
hormone is provided in intravenous unit form in doses of less than 0.5 mg
per day.
Fahy discloses that human growth hormone is administered by subcutaneous
injection or other efficacious route every day, every other day or three times a week at
an HGH equivalent dose of 0.01 to 0.05 mg/kg of body weight. See Fahy at 5, lines 6-
10. According to the teachings in Fahy, a dose of less than 0.5 mg per day would be
administered to a patient weighing less than 50 kg and receiving 0.01 mg/kg of human
growth hormone.10 It would have been prima facie obvious to one of ordinary skill in the
art to provide that dose in intravenous unit form as recited in claim 26.11 See In re
Kotzab, 217 F.3d 1365, 1370, 55 USPQ2d 1313, 1317 (Fed. Cir. 2000) (suggestion to
modify may come explicitly from statements in the prior art, the knowledge of one of
ordinary skill in the art or may be implicit from the prior art as a whole). The appellant
has failed to present any evidence to the contrary. Therefore, the rejection of claim 26
under 35 U.S.C. § 103 is affirmed.
The appellant argues claims 26 and 27 as a group. Brief at 6. Therefore, the
rejection of claim 27 under 35 U.S.C. § 103 is also affirmed.
G. Rejection of claim 28 under 35 U.S.C. § 103
10 Claims 25 and 26 are not limited to human patients.
11 The appellant does not argue that intravenous application is patentably distinct from subcutaneous
injection. See Reply Brief at 24.
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