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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