Appeal No. 2006-3012
Application No. 09/808,878
0.45 mg CEE reduced the number and severity of hot flushes to the same
extent as 2.5 mg MPA combined with 0.625 mg CEE. (Id. at ¶ 14.)
We do not find Dr. Lobo’s declarations to outweigh the evidence of
obviousness. Dr. Lobo’s statements may reflect his own state of mind, but
the determination of obviousness is not based on the expectations of any
single individual.5 Rather, obviousness under § 103 is determined based on
the expectations of a hypothetical person of ordinary skill in the art fully
aware of the state of the prior art. See In re Rouffet, 149 F.3d 1350, 1357, 47
USPQ2d 1453, 1457 (Fed. Cir. 1998) (“Obviousness is determined from the
vantage point of a hypothetical person having ordinary skill in the art to
which the patent pertains. . . . The legal construct also presumes that all prior
art references are available to this hypothetical skilled artisan.”).
Here, the evidence of record shows that such a person would not have
found the results shown in the specification to be unexpected. Utian reports
the results of the HOPE study. The results shown in Utian’s Figure 1B and
Figure 3B appear to correspond to those shown in the instant specification,
page 9, lines 15-20 and 20-25, respectively. Utian states that the results of
the HOPE study “showed that lower-dosage combinations of CEE and
CEE/MPA were effective in decreasing the number and severity of hot
flushes. . . . In general, the lower-dosage combinations, especially CEE
0.45/MPA 1.5 and CEE 0.3/MPA 1.5, were as effective for symptom relief
5 We do not find credible Dr. Lobo’s statement that his expectations were
shared by “others” because Appellant has provided no evidence to support
that statement.
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