Appeal 2007-1615
Application 10/693,442
Appellant argues that Van Heerden “teaches a reasonable expectation
not of success, but of failure” (Appeal Br. 18), because Van Heerden’s data
shows that the active ingredient in Hoodia “suppresses appetite transiently,
then stimulates appetite” (id. at 15), which “causes marked weight gain”
(id.). Appellant cites Van Heerden’s Figures 5 and 6 in support of this
contention. Figures 5 and 6 represent data from Example 45, and they do
show some inconsistencies - some animals given certain extracts lost body
mass, while some gained. However, Van Heerden states that
[a]nimals in this study received a restricted diet i.e. animals
only received food between 12:00 and 3:00 pm daily. This is
different from all other biological assays conducted thus far,
whereby food was available to the rats a[d] lib. Animals were
acclimati[z]ed over a seven day period (days -7 to -1), dosing
took place from day 0 to day 6 at 9:00 am by oral gavage . . .
The results generated during the study showed that the
acclimatization period was too short. Rats feed mainly during
the night and the sudden change to a restricted access to feed
for three hours during day-time, resulted in low daily feed
intakes. The daily intake of feed was still increasing in most
groups at the end of the acclimatization period when dosing
with the test items started. As a result of this, the effect of the
test materials did not significantly affect the food intake of the
rats during the period of dosing.
Van Heerden, col. 63, l. 53 to col. 64, l. 57. In other words, Van Heerden
acknowledges that this particular experiment was flawed. Therefore, we
find that the data shown in Figures 5 and 6 do not support Appellant’s
contention that “hoodia extracts cause body mass to increase, not decrease”
(Decl. I, ¶ 17). Indeed, as discussed above, Van Heerden’s Example 44
shows just the opposite.
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