Appeal 2007-0860
Application 10/148,535
retrospective study of adults and children with traumatic brain injury and
active seizure disorders, found a trend toward a lesser incidence of seizures
during methylphenidate therapy.” (Gros. Tsur, p. 673.) Gros-Tsur goes on
to state, however, that in their study, “changes in seizure frequency were
noted when methylphenidate was given to the five children who were still
having seizures. This observation may simply reflect a normal variation in
seizure frequency, but it does raise concerns regarding the presumably
innocuous nature of methylphenidate in children whose seizures are not well
controlled.” (Id. at 673-74 (emphasis ours).) Thus, Gros-Tsur, who are
artisans of skill in the art, do not find Wrobleski demonstrates a level of skill
that would motivate the ordinary artisan to treat seizure disorders with
methylphenidate.
Claims 3 and 7 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Harris and Carlson.4
Harris is relied upon as above (Answer 6-7). The Examiner
acknowledges that Harris fails to teach the use of methylphenidate for
bipolar disorder (id. at 7).
Carlson is cited for teaching a method of using methylphenidate for
treating bipolar disorder.
The Examiner concludes:
A person of ordinary skill in the art would have been
motivated to use the single isomer disclosed by Harris [ ] for
treating dipolar [sic] because a single enantiomer would have
4 We acknowledge the Dissent’s suggestion that a new ground of rejection be
made. The rejection on appeal, however, is the one made by the Examiner,
not one that hypothetically could have been made. If the Examiner
concludes that the prior art supports a different rejection than the one
reversed herein, the Examiner is free to reject the claims on that basis.
7
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