Appeal No. 2006-0392 Page 4
Application No. 10/034,981
Claim 1 is drawn to “[a] method for the abortive treatment of acute
migraine headache in a subject comprising administering to the subject an
effective doe of intravenous valproate such that acute migraine headache is
lessened or reduced in said subject.” As noted by the appellant, however, the
Welch reference teaches that there is a distinction between the prophylactic
treatment of migraine headaches and the acute treatment of migraine
headaches. See Appeal Brief, page 5. Welch teaches that valproic acid is useful
for the prevention of migraine headaches, but does not teach or suggest its use
for the symptomatic treatment of acute migraine headaches.
The examiner argues that Welch teaches that valproate sodium is
moderately effective in preventing migraine and reducing the frequency, severity
and duration of severe attack as compared with placebo, and that Welch does
not restrict when the valproate may be administered, which we infer to mean that
the preventative treatment of the administration of valproate sodium may be
administered while the patient has a migraine headache. The examiner does not
address, however, why one of ordinary skill in the art would take an oral
preventative treatment, given daily, and administer it intravenously. The rationale
given in the rejection, i.e., since medications intravenously administered get to
the blood stream faster, applies to the symptomatic treatment required by claim 1
and not to the preventative treatment taught by Welch. Thus, it appears that the
examiner has impermissibly used hindsight to combine the references to arrive at
the claimed invention. Moreover, as further noted by the appellant, Walser is
drawn to the intravenous administration of valproate in the treatment of chronic
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