Appeal 2007-0181
Application 10/057,323
Rosenblum, as Medical Letter teaches at page 68 that fenofibrate is not as
effective as the statins in lowering LDL cholesterol, a major risk factor in
atherogenesis, we disagree. “A statement that a particular combination is
not a preferred embodiment does not teach away absent clear
discouragement of that combination.” Syntex (USA) LLC v. Apotex, Inc.,
407 F.3d 1371, 1380, 74 USPQ2d 1823, 1830 (Fed. Cir. 2005) (citations
deleted). Moreover, the fact that the combination of ezetimibe and
fenofibrate is one of a number of obvious combinations of cholesterol
treatments does not make it any less obvious. KSR, 127 S.Ct. at 1742, 82
USPQ2d at 1397 (“What matters is the objective reach of the claim. If the
claim extends to what is obvious, it is invalid under § 103.”).
Claims 21, 28, 32, and 34 stand rejected as being obvious over the
combination of Rosenblum and Medical Letter as applied to claims 1-4, 11-
13, 37-40, 42, 43, 47, 48, 83, 84, and 86 under 35 U.S.C. § 103(a) above, as
further combined with Katzung (Answer 5).
Rosenblum and Medical Letter are relied upon as above (id.).
Katzung is cited for teaching that niacin is also useful as a cholesterol
lowering agent (id.). The Examiner concludes that it would been obvious to
combine niacin with the ezetimibe-fenofibrate composition taught by the
combination of Rosenblum and Medical Letter because the combination of
two or more agents, each known to be useful in reducing serum cholesterol,
would have been prima facie obvious (id.).
As to claims 21 and 28, Appellants argue that neither Rosebblum nor
Medical Letter suggest or provide any motivation for combining a sterol
absorption inhibitor such as eztimibe, a PPAR activator such as fenofibrate,
and niacin (Br. 12). Appellants argue that the references provide no
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