Appeal No. 2006-2368 Page 6
Application No. 10/247,032
level of C-reactive protein is inherently present in 50 out of 100 atherosclerosis
patients. And as the treatment of a single patient with ezetimbre as the specific
sterol adsorption inhibitor, and simvastatin as the HMG-CoA reductase inhibitor,
wherein the patient has a blood level of CRP greater than about 0.4 mg/dL would
anticipate the methods of claims 1 and 32, Rosenblum is deemed to inherently
anticipate the subject matter of those claims.
With respect to treating vascular inflammation (claim 1) or reducing
vascular c-reactive protein levels (claim 32), those results would be inherent in
the method of Rosenblum, as you are administering the same compounds, i.e.,
ezetimbre as the specific sterol adsorption inhibitor, and simvastatin as the HMG-
CoA reductase inhibitor, to the same group of patients, atherosclerosis patients,
more than half of which, as discussed above, have c-reactive protein levels
greater than about 0.4 mg/dL. See Perricone v. Medicis Pharmaceutical Co.,
432 F.3d 1368, 1377-78, 77 USPQ2d 1321, 1328 (Fed. Cir. 2005) (noting that
the realization of a new benefit of an old process does not render that process
patentable); see also Bristol-Myers Squibb Co. v. Ben Venue Laboratories, 246
F.3d 1368, 1376, 58 USPQ2d 1508,1514 (Fed. Cir. 2001) (stating in the context
of a claimed process that was drawn to the same use comprising the same steps
of the prior art, “[n]ewly discovered results of known processes directed to the
same purpose are not patentable because such results are inherent.”).
Our review of the Rosco case, cited by appellants, does not suggest a
different result. That case involved “cross-view” mirrors, used on school buses,
Vol. 68, pp. 297-303 (2004).
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