Appeal 2007-1155
Application 10/230,575
in Schatzberg ‘046 overlaps the patient population in Appellant’s claimed
method.
There can be no doubt that Schatzberg ‘046’s invention is directed to
a method of inhibiting progression toward dementia by administering a
glucocorticoid receptor antagonist in an amount that is effective to treat
dementia. However, Schatzberg ‘046 requires that the patient being treated
is determined to have a score of between 21 and 29 on the Folstein Mini
Mental Status Exam. The Examiner makes no findings on this record to
establish a nexus between the patient treated in Schatzberg ‘046 and the
patient treated in Appellant’s claims. Instead, the Examiner simply asserts
that the patient population is the same. In our opinion, the factual evidence
before us is insufficient to sustain the rejection. Conclusions of obviousness
must be based upon facts, not generality. In re Warner, 379 F.2d 1011,
1017, 154 USPQ 173, 178 (CCPA 1967); In re Freed, 425 F.2d 785, 787,
165 USPQ 570, 571 (CCPA 1970).
Accordingly, we reverse the rejection of claims 1-15 under the
judicially created doctrine of obviousness-type double patenting as being
unpatentable over claims 1-20 of Schatzberg ‘046.
CONCLUSION
In summary, we reverse all rejections of record.
REVERSED
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