Appeal No. 2006-0819 Page 5
Application No. 09/929,862
each of these individual drugs was known per se and was used alone for certain
medicinal purposes . . . their specific use together in a fixed composition has not
been described in the prior art cited by the Examiner for any reason whatsoever.”
Id. Geiger, according to appellant, supports the proposition that even though
three separate ingredients each had been used separately for the same purpose,
it would have only been obvious to try combinations of those agents. See id.
Thus, “[w]hile both the atorvastatin metabolite and ‘the CETP inhibitor compound’
are used in the treatment of various heart conditions, their specific applications
and mechanisms of action are quite different,” and thus there is no motivation, as
in Geiger, to arrive at the claimed combination. Id. at 7.
Moreover, appellant asserts, “there is no teaching or suggestion in the art
that these particular drugs should be selected from the vast array of available
compounds and combined in a single pharmaceutical composition,” and at most,
the art only supports an “obvious to try” situation. Id. (emphasis in original).
Appellant asserts that there must be a reason suggested by the references, and
not hindsight, to select the claimed components and put them together in a single
pharmaceutical composition. See id. “Specifically, Deninno [ ] recites a whole
host of specific CETP inhibitors and embraces a genus of an even greater
number of CETP inhibitors,” and “Roth teaches a vast amount of HMG-Co A
reductase inhibitors in addition to the hydroxy metabolites of atorvastatin.” Id.
Appellant contends that “there is simply no direction to select these two specific
compounds out of all the possible combinations of HMG-Co reductase inhibitors
(Roth) and CETP inhibitors (Deninno).” Id. at 7-8.
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