Appeal No. 2006-1066 Page 6
Application No. 09/810,109
“alcoholics” was intended to be limited to those suffering from acute, and not chronic,
alcoholism. That it may be possible to use the term “alcoholic” to also encompass a
person suffering from only acute alcoholism does not negate the description in Zappla
of administering a CDP-choline derivative to an alcoholic, as the term is commonly
used, that is, to a person suffering from “Chronic alcohol . . . dependence.” Thus, we
find that Zappla describes administering a CDP-choline derivative to a mammal having
alcohol dependency, as this term is defined in the specification.
Based on our determination that Zappla describes administering its compound to
mammals having alcohol dependency, we conclude that the examiner has set forth a
prima facie case that Zappla anticipates claim 1. In addition, Appellant has not provided
any evidence that the compound and amounts thereof described in Zappla do not
inherently treat alcohol dependency.
Appellant argues that Rapoport v. Dement, 254 F.3d 1053, 59 USPQ2d 1215
(Fed. Cir. 2001), supports his position. Appeal Brief, pages 12-13; Reply Brief, pages
10-11.
We disagree. In Rapoport, the court considered whether claims to a method of
treating sleep apnea with buspirone was anticipated by a disclosure of treating anxiety
secondary to sleep apnea with the same agent. The court interpreted the claims to be
limited to treating the underlying disorder itself, based in part on the application’s
statement that the drug should be administered “at the hour of sleep.” Id. at 1060, 59
USPQ2d at 1220. The allegedly anticipating reference did not specify that the drug
should be administered at bedtime, see id. at 1062, 59 USPQ2d at 1221, and therefore
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