Appeal 2007-2254
Application 10/383,115
ADAMS, Administrative Patent Judge, concurring.
I agree that claim 1 is the prima facie obvious under 35 U.S.C. § 103
the combination of Amin, Yrjanheikki and LeBlanc. I write separately,
however, to clarify the basis for affirming the rejection of record.
Claim 1 is drawn to a method of treating Alzheimer’s disease. The
method requires that a tetracycline compound of formula (I) be administered
to a mammal in an amount effect to inhibit or reduce amyloid plaque
formation. As the majority and the Examiner recognize (supra 4 and
Answer 4 respectively), Amin teaches the administration of tetracycline
compounds within the scope of formula (I) to Alzheimer’s patients (Amin,
col. 7, ll. 21-25). Accordingly, the patient population in Amin is the same as
that required in Appellant’s claim 1. In addition, as the majority and the
Examiner recognize (supra 4 and Answer 4 respectively), Amin teaches the
administration of this tetracycline compound in an amount that overlaps the
amount Appellant discloses to be effective (cf. Amin, col. 8, ll. 59-64 and
Appellant’s Specification 5: 12-16). More specifically, both Amin and
Appellant’s Specification disclose the same preferred range of from about 1
mg/kg/day to about 18 mg/kg/day (id.). Thus, Amin teaches the
administration of the same effect amount of a tetracycline compound of
formula I to the same patient population required in Appellant’s claim 1.
While the majority is correct in their finding that “[o]verlapping
ranges support a prima facie case of obviousness. See In re Geisler, 116
F.3d 1465, 1469, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997),” the majority
incorrectly bases their finding of obviousness on the rationale that “the
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