Appeal No. 2006-0872 Page 6
Application No. 09/899,704
administering a therapeutically effective amount of ascorbic acid or a salt of
ascorbic acid to said individual.” Thus, claim 11 is not limited to the use of L-
ascorbic acid phosphate alone, nor is it limited to the recovery of mitochondrial
function, Na+-K+-ATPase protein expression, Na+-K+-ATPase protein activity, and
active Na+ transport, as claim 11 also recites the recovery of cell proliferation,
which is explicitly taught by Fahim.
Moreover, claim 12, which depends from claim 11, specifies that the injury
may be skin abrasions, cuts and burns, and Fahim specifically teaches treatment
of those injuries. Thus, the recovery of mitochondrial function, Na+-K+-ATPase
protein expression, Na+-K+-ATPase protein activity, and active Na+ transport
would necessarily be inherent in the treatment of those injuries. Note that
“[n]ewly discovered results of known processes directed to the same purpose are
not patentable because such results are inherent.” Bristol-Myers Squibb Co., v.
Ben Venue Laboratories Inc., 246 F.3d 1368, 1376, 58 USPQ2d 1508, 1514
(Fed. Cir. 2001).
CONCLUSION
Because the examiner has set forth a prima facie case of unpatentability,
the rejection of claims 3, 4, 11-13, 15 and 16 under 35 U.S.C. § 103(a) is
affirmed.
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