Ex Parte Perry

Board of Patent Appeals and Interferences

Mar 3, 2011

10907714 (B.P.A.I. Mar. 3, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte STEPHEN C. PERRY
__________

Appeal 2010-011309
Application 10/907,714
Technology Center 1600
__________

Before TONI R. SCHEINER, LORA M. GREEN, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2010-011309
Application 10/907,714

2
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 2-7 and 9-12.2 We have jurisdiction under 35
U.S.C. § 6(b).

STATEMENT OF THE CASE
Claim 2 is representative of the claims on appeal, and reads as
follows:
2. A composition used as a dietary supplement administered orally to
human patients who have manifested the symptoms of an early stage of
Alzheimer’s disease as diagnosed by their physician comprising a mixture
of:
curcumin for delaying the progress of Alzheimer’s disease
symptomology in humans;
piperine, a botanical pepper extract, for increasing the bioavailablity
of curcumin in the bloodstream when said curcumin is orally administered to
a patient;
oleic acid;
oleanolic acid;
ursolic acid;
galantamine;
huperzine A;
choline; and
vitamin B5.

The following grounds of rejection are before us for review:
I. Claims 2-6, 10, and 12 stand rejected under 35 U.S.C. § 103(a) as
being rendered obvious by the combination of Okada,3 Hendrix,4
Kimura,5 Castillo,6 and Zinkowski.7

2 Claims 14-16 stand withdrawn from consideration (App. Br. 2).
3 Okada et al., US 2003/0203057 A1, published Oct. 30, 2003.
4 Hendrix, US 2006/0116334 A1, published Jun. 1, 2006.
Appeal 2010-011309
Application 10/907,714

3
II. Claims 7, 9, and 11 stand rejected under 35 U.S.C. § 103(a) as
being rendered obvious by the combination of Hendrix, Kimura,
Castillo, and Zinkowski, as further combined with Wessel.8
We reverse.
ISSUE
Has the Examiner established by a preponderance of the evidence that
the combination of Okada, Hendrix, Kimura, Castillo, and Zinkowski
renders obvious a composition as required by independent claims 2 and 3
that requires oleic acid?

FINDINGS OF FACT
FF1 The Examiner’s statement of the rejections may be found at pages 3-7
of the Answer.
FF2 As to oleic acid, the Examiner finds that Zinkowski teaches that free
fatty acids, such as oleic acid, “are used to treat . . . Alzheimer’s antigens”
(Ans. 5 (citing Zinkowski, ¶153)).
FF3 Specifically, Zinkowski teaches:
Also, rht [recombinant human tau] optionally can be treated
with free fatty acids (FFA), according to Wilson and Binder
(Am. J. Path, 150, (6), pp. 2181-95 (1997); J. Biol. Chem., 270,
(41), pp. 24306-14, (1995)). Such treatment, preferably using
unsaturated fatty acids (e.g., including but not limited to oleic
or linoleic acids, most preferably arachidonic acid) results in the

5 Kimura et al., US 2006/0160852 A1, published Jul. 20, 2006.
6 Castillo et al., US 2001/0055630 A1, published Dec. 27, 2001.
7 Zinkowski et al., US 2003/0113896 A1, published Jun. 19, 2003.
8 Wessel et al., US 2004/0024048 A1, published Feb. 5, 2004.
Appeal 2010-011309
Application 10/907,714

4
polymerization of the rht, which polymerization also is a
characteristic of Protein A/G treated A68. Thus, FFA treated rht
is a suitable Alzheimer’s disease antigen that can be used to
detect autoantibodies diagnostic for Alzheimer's disease.

(Zinkowski, ¶153.)

PRINCIPLES OF LAW
Obviousness requires a suggestion of all limitations in a claim. See In
re Royka, 490 F.2d 981, 985 (CCPA 1974).

ANALYSIS
Appellant argues that “[i]t is hard to understand the relevance of
Zinkowski . . . in terms of appellant’s claimed invention.” (Reply Br. 4.)
We agree. The Examiner’s motivation for combining the references is
that each is known in the art for the same purpose, which is treating
Alzheimer’s disease (Ans. 5). Zinkowski, however, teaches adding an
unsaturated fatty acid such as oleic acid to rht, which allows for
polymerization of the rht, which then may be used to detect autoantibodies
diagnostic for Alzheimer’s disease (FF3). The Examiner has not explained
how the addition of oleic acid to rht to allow for the detection of
autoantibodies diagnostic for Alzheimer’s disease would provide a reason to
add the oleic acid to a composition for the treatment of Alzheimer’s disease.
We are thus compelled to reverse the rejection.

Appeal 2010-011309
Application 10/907,714

5

CONCLUSION OF LAW
We conclude that the Examiner has not established by a
preponderance of the evidence that the combination of Okada, Hendrix,
Kimura, Castillo, and Zinkowski renders obvious a composition as required
by independent claims 2 and 3 that requires oleic acid. We thus reverse the
rejection of Claims 2-6, 10, and 12 under 35 U.S.C. § 103(a) as being
rendered obvious by the combination of Okada, Hendrix, Kimura, Castillo,
and Zinkowski. As Wessel does not remedy the deficiencies of that
rejection, we also reverse the rejection of claims 7, 9, and 11 under 35
U.S.C. § 103(a) as being rendered obvious by the combination of Hendrix,
Kimura, Castillo, and Zinkowski, as further combined with Wessel.

REVERSED

alw

MALIN HALEY DIMAGGIO BOWEN & LHOTA, P.A.
1936 S ANDREWS AVENUE
FORT LAUDERDALE, FL 33316