Appeal No. 2007-1138
Application No. 10/304,918
“Chronic use of a number of medications is known to contribute to
obesity.” (Specification 1: 21). Examples of “obesity-promoting drugs”
include “corticosteroids and antidiabetes drugs like hypoglycemic drugs,
starch blockers, glucose production blockers, and insulin sensitizers.” (Id. at
3: 27-29.) According to the instant specification, “tocopherol and
tocotrienol compositions can be used to reduce triglyceride accumulation in
adipocytes, particularly accumulation resulting from obesity-promoting drug
use.” (Id. at 1: 29-31.) It is stated that the disclosed “formulations exert
antiobesity effects in vivo as measured by reduced weight gain and reduced
triglyceride accumulation. . . . Control mice treated with anti-diabetic drugs
alone gained significantly more weight than either the no-trea[t]ment
controls or the formulation-treated mice.” (Id. at 13: 4-8.) The specification
also reports human trials of formulations of tocotrienol and an anti-diabetic
drug in which “[n]o significant weight gain is observed in either the control
or formulation treatment groups, whereas anti-diabetic drug treatment
groups present significant weight gain.” (Id. at 13: 25-27.)
The Examiner relies on the following prior art in rejection the claims:
Perricone U.S. Pat. 5,376,361 Dec. 27, 1994
Drug Facts and Comparison (Drug Facts) 2950-51 (1997)
Claims 1 and 10 stand finally rejected under 35 U.S.C. § 103(a) as
obvious over Perricone in view of Drug Facts. Because Appellants did not
separately argue the patentability of the claims, we select claim 1 as
representative for purpose of deciding this appeal. 37 C.F.R.
§ 41.37(c)(1)(vii). Claim 1 reads as follows:
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