Appeal No. 2006-2471 Page 5
Application No. 09/824,364
agent in combination with the HMG CoA inhibitor. Id., column 13, lines 25-54,
especially line 42.
The subject matter of the Shell patent involves “erodible, gastric-retentive drug”
delivery formulations. Shell, column 1, lines 45-50. Polymers are utilized which swell
as a result of imbibing water from the gastric fluid. These slowly erode, allowing the
formulation to slowly deliver drug on a continuous basis to the stomach and small
intestine. Id., column 1, lines 55-63; column 4, lines 28-43. Shell teaches that two or
more drugs can be co-administered in the same dosage unit, where each drug is
separately formulated with a polymer composition. Id., column 9, line 48-column 10,
line 15. This permits multiple drugs having different half-lives to be administered, while
delivering the correct dosage for each. Id.
Eichel was relied on for its teaching of enteric-coated aspirin. Eichel, Abstract.
The aspirin can be granular. Id., column 5, line 65. Enteric-coated prevastatin is
disclosed in Hodges. Hodges, column 6, line 55.
In setting forth the grounds of the rejection, the examiner stated that the claimed
combination of a statin and aspirin was taught by Eisman. Answer, page 3. According
to the examiner, Eisman also described placing drugs into a single dosage unit. Id.,
page 5. The motivation to have utilized the dosage form described in Shell was to
control the release of each drug in order to accommodate their different half-lives. Id.,
page 4.
Appellants argued that the Eisman patent does not “disclose or suggest
employing a statin and aspirin in the same dosage form.” Brief, page 7, lines 5-6 and
10-11. Shell was urged to be irrelevant since it did not teach the claimed combination
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