Appeal No. 2006-0872 Page 4
Application No. 09/899,704
lines 53-55. “The vitamin C may be provided as ascorbic acid, sodium ascorbate
or the like.” Id., Col. 1, lines 57-59. Fahim further teaches that:
The medication can be used to treat a variety of conditions.
For example, in the reproductive tract, it can be used to treat
vaginitis and cervicitis. In the genitourinary tract, it can be used to
treat urethral infections, especially the irritated bladder of
schistosomiasis patients, and in the eyes it can be used to treat
exptropian eyelids, blepharitis, keratitis, and pinkeye and to prevent
cataracts and diabetic retinopathy. On the skin, it can be used to
treat burns, cuts, fever blisters, poison ivy, chigger bites, diaper
rash, genital herpes blisters and even sunburn.
Id. at Col. 2, lines 35-45.
Thus, Fahim teaches the method of claim 11, as Fahim teaches a method
of recovering cellular functions following injury in an individual comprising
administering a therapeutically effective amount of ascorbic acid or a salt thereof,
wherein the cellular function is proliferation. The rejection of claims 1, 3, 4, 11-
13, 15 and 16 under 35 U.S.C. § 103(a) is affirmed. See, e.g., Mercexhange,
L.L.C. v. eBay, Inc., 410 F.3d 1323, 1330, 74 USPQ2d 1225, 1231 (Fed. Cir.
2005) (noting that although the defendants invalidity arguments were limited to
obviousness, arguments as to anticipation were still preserves as “anticipation is
the epitome of obviousness”); In re McDaniel, 293 F.3d 1379, 1385, 63 USPQ2d
1462, 1466 (Fed. Cir. 2002) (noting that it is “well-settled that ‘anticipation is the
epitome of obviousness.’”).
Appellants argue that Fahim does not teach that “vitamin C would be
effective or useful when used alone as claimed herein,” thus asserting that
“Fahim . . . actually teach[es] away from the instant invention.” Appeal Brief,
page 7.
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