Appeal No. 2005-2593 20
Application No. 90/005,867
346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965) (arguments in the brief do not
take the place of evidence in the record).
Finally, the appellant argues that the references do not provide any motivation for
a kit comprising the recited hormones which establishes a regimen for replenishing the
hormones to pre-determined physiological levels. Brief at 24. Significantly, the phrase
“said kit for establishing a regimen for the replenishment” of the recited hormones to
predetermined physiological levels is merely functional language and does not further
limit the structure of the kit. Cf. In re Casey, 370 F.2d 576, 580, 152 USPQ 235, 238
(CCPA 1967) (the manner or method in which a machine is to be utilized is not germane
to the issue of the patentability of the machine itself). In any event, the appellant has
failed to establish that the amount of human growth hormone and DHEA administered in
Fahy and the amount of estrogen administered in
Umbreit is not sufficient to establish a regimen for replenishing these hormones to
predetermined physiological levels.12
For the reasons set forth above, the rejection of claim 30 under 35 U.S.C. § 103
is affirmed.
12 Again, we note that the amount of human growth hormone and the amount of at least two of the
listed supplemental hormones “for establishing a regimen” for replenishing those hormones to
predetermined physiological
levels is dependent on a number of factors including the hormone levels in the particular patient, the
hormone replenishment levels, and the length of the regimen.
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