Appeal No. 2002-1353 Page 5
Application No. 09/268,353
21% to about 30% by weight of the dosage unit.” See page 6. Gram teaches
that other excipients may be added as diluents, binders, disintegrants, lubricants,
buffers, and preservatives. See page 8, line 29, to page 9, line 5. Thus, Gram
not only does not suggest lowering the amount of combined excipients to a
maximum of 20%, it teaches away from doing so.
It is true that Gram states that “[t]he kind and amount of excipients . . .
depends very much on the physicochemical properties of the active compound to
be administered and on the desired absorption profile.” This statement provides
a general suggestion to vary the amount of excipients. However, the reference
must be considered as a whole. “It is impermissible within the framework of
section 103 to pick and choose from any one reference only so much of it as will
support a given position, to the exclusion of other parts necessary to the full
appreciation of what such reference fairly suggests to one of ordinary skill in the
art.” In re Hedges, 783 F.2d 1038, 1041, 228 USPQ 685, 687 (Fed. Cir. 1986).
The reference by Gram, when read in its entirety and without the benefit of
hindsight, would not have suggested modifying its disclosure in the manner
recited in the instant claims.
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