Appeal 2007-1615
Application 10/693,442
24). Appellant points out that LA/Ntul//-cp rats used in Tulp’s experiments
have a number of mutations that result in morbid, early-onset obesity. This
argument is not persuasive. First, Appellant does not dispute that the
LA/Ntul//-cp rat is a recognized animal model of morbid obesity in humans
(see e.g., Decl. II, ¶17). Second, obviousness does not require an assurance
of success; on the contrary, only a reasonable expectation of success is
required.
Finally, Appellant argues that “[t]he claimed invention has several
secondary indicia of non-obviousness” (Appeal Br. 27), specifically,
“unexpectedly successful results” and “achieving a new and different
function” and “evidence of copying by competitors” (id.). With respect to
the first two indicia, Appellant has provided a number of Exhibits (clinical
trial results, appended to Decl. I), purportedly showing that “Hoodia
gordonii is effective for weight loss” (Appeal Br. 27), and argues that this
result “is not only different from the prior art, but the direct opposite of it”
(id. at 28). Even accepting that the clinical trials described in the exhibits
demonstrate that Hoodia is effective for weight loss in humans, we do not
agree with Appellant’s conclusion that the effect would have been
unexpected, or that the prior art would have suggested that Hoodia facilitates
weight gain when administered in multiple doses. For the reasons discussed
above, we do not agree that the prior art teaches that ingesting multiple
doses of Hoodia results in weight gain, and we find that the prior art of
record would have provided one of ordinary skill in the art with a
reasonable expectation that Hoodia gordonii would facilitate weight loss in
humans.
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