Appeal No. 2006-1066 Page 4
Application No. 09/810,109
Claims 12 and 13 each depends from claim 11, which depends from claim 1.
Claim 11 recites that the mammal is a human. Claims 12 recites that the human is a
child or adolescent. Claim 13 recites that the human is over sixty years of age.
2. Anticipation
The examiner rejected claims 1, 6, 7, 9, and 10 under 35 U.S.C. § 102(b) over
Zappla.1 As pointed out by the examiner, Zappla describes, at page 3, lines 6-19,
administering cytidine-diphosphate-choline (“CDP-choline”) derivatives for therapy and
prevention of fatty liver in alcoholics. Final Rejection, page 3, lines 9-10. The examiner
reasoned that Zappla administers the same compound, in overlapping amounts, via the
same route, to the same population, and therefore “Zappla et al. must inherently be
treating the psychological aspects of alcoholism as well as the physical aspects.” Id.,
page 3, lines 17-21.
Appellant argues that the term “alcoholic,” used in Zappla, is not synonymous
with the term “alcohol dependency,” used in claim 1. In particular, Appellant argues that
the term “alcoholic” can include an acute alcoholic that does not have an “alcohol
dependency.” Thus, Appellant argues that treating an “alcoholic” does not necessarily
treat a person having an “alcohol dependency.” Appeal Brief, page 8, lines 7-16.
The basic question raised by this argument is whether Zappla describes
administering its compound to a mammal having alcohol dependency, as this term is
defined in the specification. Cf. Perricone v. Medicis Pharm. Corp., 432 F.3d 1368,
1379, 77 USPQ2d 1321, 1328 (Fed. Cir. 2005). We hold that it does.
1 Zappla et al., EP 0 188 647, published July 30, 1986.
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