Appeal No. 2006-0392 Page 2
Application No. 10/034,981
1. A method for the abortive treatment of acute migraine headache in a
subject comprising administering to the subject an effective dose of intravenous
valproate such that acute migraine headache is lessened or reduced in said
subject.1
Claims 1-14 stand rejected under 35 U.S.C. § 103(a) as being obvious
over Welch2 and Walser.3 After careful review of the record and consideration of
the issue before us, we reverse.
DISCUSSION
According to the rejection:
Welch teaches the administration of 800mg valproate daily
for migraine headache therapy (pp. 1476-1483). The instant claims
administer valproate in amounts ranging from 100 mg to 2000 mg.
The 800 mg of valproate administered by the prior art lies within the
range of 100 mg to 2000 mg of the instant claims.
Welch clearly teaches treating migraine headache with
valproate but does not teach administering valproate by injection
and effective amount in instant claim 1 can be any amount.
But Walser teaches that valproate can be administered by
intravenous injection in 800 mg dosage (column 4, lines 48-53).
Walser is dependent [sic, depended] upon for intravenous
administration of same quantity of valproate, 800 mg, administered
by Welch to treat migraine.
Therefore, it would have been obvious to one of ordinary skill
in the art at the time the invention was made to intravenously
administer 800 mg of valproate to treat migraine because Walser
1 According to the examiner, the copy of claim 1 contained in the appendix to the Appeal Brief is
incorrect, as the amendment after final dated November 19, 2003, was not entered. See
Examiner’s Answer, page 3. Thus, the claim should read as amended on February 27, 2003,
and that is the version set forth above. See id.
2 Welch, “Drug Therapy of Migraine,” The New England Journal Of Medicine, Vol. 329, No. 20,
pp. 1476-1483 (1993)
3 U.S. Patent No. 5,432,176, issued July 11, 1995.
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