Appeal No. 2006-3012
Application No. 09/808,878
especially preferred. It also provides specific dosage ranges for both CEE
and MPA, and the disclosed dosage ranges encompass the dosages recited in
claim 7. Finally, Plunkett directs the skilled artisan to the lower part of the
disclosed dosage ranges, in its direction to use the minimum amount of
hormones necessary to produce the desired result (col. 4, ll. 1-5) and in its
description of specific dosage ranges that are less than the disclosed
“preferred” dosages (claims 32, 35, and 42).
We do not agree with Appellant that those skilled in the art would
have considered Plunkett’s “preferred” dosages to be the optimal dosages.
Plunkett discloses a range of dosages for each hormone to be used in the
disclosed method and teaches that the actual dosages are selected according
to conventional methods, based on factors including the body weight of the
patient and the biological activity of the hormone. Plunkett specifically
claims methods that comprise administering less than the “preferred”
dosages of both MPA (claim 32) and CEE (claims 34 and 42). Thus, we do
not agree with Appellant’s implicit assertion that the only dosage disclosed
by Plunkett that those skilled in the art would have found obvious to use is
the single dosage described as “preferred.”
Appellant also argues that those skilled in the art would have
understood from Plunkett that the “preferred” dosages were thought to be the
minimum effective doses. (Reply Br. 4-5.) Appellant cites the Second Lobo
Declaration as providing evidence that the preferred dosages disclosed by
Plunkett would have been considered the minimum effective dosages. (Br.
8-9; Reply Br. 4-5.) Appellant argues that “[a]ccordingly, the teachings of
the prior art and the knowledge generally available in the art would not have
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