Appeal No. 2006-0108
Application No. 09/980,620
achieving a "non-caffeine sensitive state" can be equated with an advancement of sleep
or "sleep promotion."
The specification states with regard to "sleep promotion", that “[t]he exhibition of
the sleep promoting action of the theanine used in the present invention is determined
by evaluating changes in the brainwaves in the sleep introductory phase by polygraph."
Specification, pages 3-4. The record before us does not support that the suppression
of hypersensitive effects of caffeine equates to a change in brainwaves in the sleep
introductory phase.
Thus, we agree with appellants, that with respect to method claims 5-9, 11 and
16-18 and 20-28, that the examiner has not established a prima facie case of
obviousness.
Other Issue for Consideration
Upon return of the application to the Examiner, it is recommended that the
examiner determine the relevance of Ueda et al., PCT publication WO99/42096,
published August 26, 1999 (attached). The present application claims priority to an
April 5, 2000 Japanese patent application and thus the PCT publication is before the
filing date of the priority document for the present application.. [See also Patent
Publication US 2001/0001307 A1, dated May 17, 2001 and related issued patents
6,831,103B1 and 6,589,566B2 (attached).] The PCT publication claims priority to a
Japanese patent application filed in 1995, also presumably published. It is
recommended that the examiner consider the relevance of PCT publication
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