Appeal 2007-0181
Application 10/057,323
The statement “for the treatment of a vascular condition, diabetes,
obesity or lowering a concentration of a sterol in plasma of a mammal” is a
statement of intended use and not a patentable limitation. Thus, all that is
required is a composition as in claim 1 and a pharmaceutically acceptable
carrier. Thus, as the combination of Rosenblum and Medical Letter render
obvious a composition comprising ezetimibe and fenofibrate for lowering
serum cholesterol levels, it would have been obvious to include a
pharmaceutically acceptable carrier as the use of a pharmaceutically
acceptable carrier is taught by Rosenblum and well known to the ordinary
artisan. Thus, the rejection is affirmed as to claim 34.
The Examiner rejected claims 100 and 101 under 35 U.S.C. § 103(a)
as being obvious over the combination of Rosenblum and Katzung (Answer
5). As Appellants do not argue the claims separately, we focus our analysis
on claim 100.
Rosenblum is cited as above to the rejection of claims 1-4, 11-13, 37-
40, 42, 43, 47, 48, 83, 84, and 86 under 35 U.S.C. § 103(a) as being obvious
over the combination of Rosenblum and Medical Letter. That is, Rosenblum
was cited for its teaching that ezetimibe is useful for reducing cholesterol
levels and the risk of atherosclerosis (Answer 6). Katzung is cited for
teaching that niacin is also useful for lowering cholesterol (id.). Thus, the
Examiner concludes that it would been obvious to combine niacin as taught
by Katzung with the ezetimibe as taught by Rosenblum because the
combination of two or more agents, each known to be useful in reducing
serum cholesterol, would have been prima facie obvious (id.).
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