Ex Parte Krieger et al - Page 9


                     Appeal No. 2006-1993                                                                            Page 9                         
                     Application No. 10/147,651                                                                                                     

                              LDL cholesterol and intima thickening are “other than                                                                 
                              atherosclerosis.[”, sic]  Thus, Azen clearly anticipates the claimed                                                  
                              invention.                                                                                                            
                     Examiner’s Answer, page 6.                                                                                                     
                              Appellants argue that the patients who were treated by Azen all had                                                   
                     atherosclerosis, and that was in fact a criteria of the study.  Appeal Brief, page                                             
                     16.  We agree, and the rejection is reversed.                                                                                  
                                                               OTHER ISSUES                                                                         
                              We point the examiner’s attention to the following art, which may have a                                              
                     bearing on the patentability of claims 13-16.                                                                                  
                              BellaOnlineSM4 discusses the use of vitamin supplements in the treatment                                              
                     of fertility, a disease other than atherosclerosis, mentioned in the specification                                             
                     and discussed by counsel at the oral hearing as a disease other than                                                           
                     atherosclerosis, that could be treated by the method of claims 13-16.  Although                                                
                     copyrighted in 2006, the webpage references an article by Bayer,5 published in                                                 
                     1960, that states that in a preliminary human trial, infertile couples given vitamin                                           
                     E showed a significant increase in fertility.                                                                                  
                              Miettinen6 discusses the use of probucol in prevention of cardiovascular                                              
                     diseases, and states that the incidence of stroke, a disease other than                                                        
                     atherosclerosis discussed in the specification and the claims as originally filed, is                                          
                     decreased in the group that received probucol.                                                                                 
                                                                                                                                                    
                     4 BellaOnline, http://www.bellaonline.com/articles/art32665.asp, printed out September 5, 2006.                                
                     5 Bayer, R., “Treatment of infertility with vitamin E,” Int. J. Fertil., Vol. 5, pp. 70-8 (1960).                              







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