Appeal No. 2006-3204 Page 4
Application No. 10/057,629
In re Gorman, 933 F.2d 982, 986, 18 USPQ2d 1885, 1888 (Fed. Cir. 1991).
Appellant argues that the examiner has failed to establish a prima facie case of
obviousness. See Appeal Brief, page 10. We agree, and the rejection is
reversed.
As noted by appellant, Rosenblum, while teaching that ezetimibe,
optionally in combination with an HMG-CoA reductase inhibitor such as
simvastatin, may be used for reducing the cholesterol and the risk of
atherosclerosis, does not teach or suggest the use ezetimibe in the treatment of
sitosterolemia. See id. at 11.
Belamarich teaches that patients with sitosterolemia “are frequently
hypercholesterolemic with elevated levels of low-density lipoprotein (LDL)
cholesterol.” Belamarich, page 977, second column. While Belamarich teaches
that sitosterolemia may be treated with cholestyramine, a bile sequestering resin,
it does not teach or suggest the use of ezetimibe.
The examiner’s rationale for the combination appears to be that since
patients with sitosterolemia are frequently hypercholesterolemic, and Rosenblum
teaches that ezetimibe optionally in combination with an HMG-CoA reductase
inhibitor is used to lower cholesterol, it would have been obvious to the ordinary
artisan to use ezetimibe optionally in combination with an HMG-CoA reductase
inhibitor to treat sitosterolemia.
We find that the examiner’s reasoning to be flawed, however, as the art
established that compounds that are used to treat hypercholesterolemia may not
be useful in the treatment of sitosterolemia. See Appeal Brief, pages 12-14.
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