Friday, October 25, 2013

Turmeric in Ayurvedic medicine as prior art

From Ex parte Berkson

According to the Examiner, it would have been obvious to a person of
ordinary skill in the art at the time the
invention was made to have combined
curcumin and nitroglycerin for thei
r known benefits since each was well
known in the art for treating wounds. (Ans. 10.)(citing
In re Kerkhoven , 626 F.2d 846, 850 (CCPA 1980) and
In re Sussman , 136 F.2d 715, 718 (CCPA

We agree with the Examiner that these applie
d references evince a prima facie case of obviousness for claim 1.
Appellants’ nonobviousness position is premised on their contention
that while “some healing effects would
be expected through the use of the
individual ingredients,”
, curcumin and nitroglycerin, the claimed
invention exhibits superior and unexpect
ed results over the cited art, as
evidenced by the declarations of Linds
ey Berkson and Jack Moncrief, M.D.
(App. Br. 6.)

While evidence of unexpected results
can be used to rebut a prima
facie case of obviousness,
Pfizer, Inc. v. Apotex, Inc.
, 480 F.3d 1348, 1369-
70 (Fed. Cir. 2007), it is well settled that
such results must
be established by
factual evidence,
In re Lindner
, 457 F.2d 506, 508 (CCPA 1972). Mere
argument or conclusory statements in
the specification does not suffice.


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