Appeal 2007-0181
Application 10/057,323
Medical Letter teaches that fenofibrate is used in the treatment of
hypertriglyceridemia (Medical Letter 58). Fenofibrate increases lipoprotein
lipase activity and triglyceride clearance (id.). In addition, Medical Letter
teaches that finofibrate descreases LDL cholesterol (id.).
It would have been obvious to one of ordinary skill in the art to
combine ezetimibe as taught by Rosenblum with fenofibrate as taught by
Medical Letter because both references teach that both compounds lower
serum cholesterol levels. This type of motivation has been recognized often
by the predecessor of our reviewing court, which has held that it is prima
facie obvious to combine two compositions each of which is taught by the
prior art to be useful for the same purpose, in order to form a third
composition which is to be used for the same purpose. In re Susi, 440 F.2d
442, 445, 169 USPQ 423, 426 (CCPA 1971); In re Crockett, 279 F.2d 274,
276-77, 126 USPQ 186, 188 (CCPA 1960). The idea of combining them
flows logically from their having been individually taught in the prior art. In
re Kerkhoven, 626 F.2d 846, 851, 205 USPQ 1069, 1072 (CCPA 1980).
Here the art recognized property of each of the described agents as a
cholesterol lowering agent would have provided one of ordinary skill in the
art with ample suggestion of their combination in the composition as
claimed. KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1739, 82 USPQ2d
1385, 1395 (2007) (“The combination of familiar elements according to
known methods is likely to be obvious when it does no more than yield
predictable results.”).
With respect to Appellants’ argument that neither Rosenblum nor
Medical Letter provides motivation for substituting a PPAR such as
fenofibrate for the statin used in combination with the ezetimibe as taught by
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