Appeal No. 2006-3290 Page 8
Application No. 10/072,823
Notwithstanding Appellant’s argument to the contrary, we find nothing in the
evidence of record to suggest that the activity of oridonin and lupulone is limited
to any particular type of cancer. Instead, the evidence of record suggests that
lupulone and oridonin exhibit their activity against cancers generally. Therefore,
a person of ordinary skill in the art would have been led to combine lupulone and
oridonin to make a composition that would be suitable for the treatment of
cancers generally.
With reference to Exhibit 27, Appellant asserts “[t]he type of treatment
used to treat cancer depends, in part, on the type of cancer to be treated.” Brief,
page 9. Therefore Appellant contends that “[c]ombinations of anticancer agents
should be chosen, at least in part, based on the type of cancer to be treated.” Id.
Exhibit 2 discusses a variety of cancer treatments and states (page 1, paragraph
4), “[t]he type of chemotherapy given depends on the type of cancer you have[,]
the stage of your cancer, and your overall health.” Exhibit 2 also states (page 1,
paragraph 2), “[c]hemotherapy drugs destroy cancer cells by stopping them from
growing and multiplying. However, healthy cells can also be harmed, especially
those that divide quickly, such as white blood cells.” Appellant has failed to
establish that a person of ordinary skill in the art would consider oridonin and
lupulone to be included in the class of “chemotherapy drugs” discussed in Exhibit
2.
In contrast, Ito points out (paragraph 7), “it has been found that there are
hardly any adverse reactions from herbal medicine oriented plants, they are
7 http://www.bymyside.com/treatment/types_treatment.jsp.
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