Appeal 2007-1615
Application 10/693,442
Appellant also argues that “one of skill in the art would read Habeck
to imply that [the active ingredient in Hoodia] was not effective to reduce
body fat” (Appeal Br. 21) because Habeck “specifically withheld the results
of the control group” (id. at 20). “Therefore,” Appellant argues, Habeck
“fails to inform one of skill in the art about whether the body fat change was
due to, for example, the prison-like conditions under which test subjects
were held, or the bad quality of food which they were given” (id.). We do
not find this argument persuasive. Habeck’s article is a summary of a 15
day double-blind, placebo controlled proof-of-principle study described as
“a very demanding clinical study because people had nothing to do but eat
and watch TV” (Habeck 280). Habeck does not reproduce the data
underlying the summary, but does report that the “men in the treatment
group achieved a 30% reduction in calorie intake, accompanied by a
significant reduction in body fat content by 1 kg” (id.). We do not agree that
one of skill in the art would conclude that the active ingredient in Hoodia
“was not effective in reducing body fat” (Appeal Br. 21), given the premise
of the article: Hoodia “has shown promise as an appetite suppressant in
clinical trials and could have potential as a new anti-obesity drug” (id.).
Appellant acknowledges that Tulp concludes that “Hoodia sp. may
have a strong potential for clinical appetite regulation and weight control”
(Declaration of Albert M. Fleischner, dated March 10, 2006, ¶ 21,
hereinafter “Decl. II”), but argues that “one of skill in the art would read this
as an invitation to pursue further experimentation” (id.), rather than an
“assurance of success in humans[,] because LA/Ntul//-cp mutants are so
different from normal rats (and from normal human beings)” (Appeal Br.
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