Monday, March 11, 2013

Appellant prevails in Ex parte Belanoff on obviousness

Within Ex parte BELANOFF

As to the prima facie case of obviousness:

“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness.” In re
Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993). “After evidence or argument
is submitted by the applicant in response, patentability is determined on the
totality of the record, by a preponderance of evidence with due consideration
to persuasiveness of argument.” In re Oetiker, 977 F.2d 1443, 1445 (Fed.
Cir. 1992).


In this case, we agree with Appellant that the preponderance of the
evidence of record fails to establish that IFN-α-induced psychosis was
sufficiently linked to glucocorticoid regulatory dysfunction (i.e., increased
levels of cortisol) such that a person of ordinary skill in the art would have
been motivated to treat IFN-α-induced psychosis with glucocorticoid
receptor antagonists according to the teachings of Schatzberg (see, e.g., App.
Br. 11-14; FF1 and FF2).


The Examiner has not disputed the facts stated in the Declaration (FF6
and FF8) or provided contrary evidence establishing a link between IFN-α-
induced psychosis and glucocorticoid regulatory dysfunction. We therefore
conclude that this aspect of the rejection is not supported by a preponderance
of the evidence of record.


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