Appeal 2006-3086
Application 10/260,882
125 parts granular simethicone and (b) about 90-115 parts magnesium
carbonate.1
Simethicone is available in a liquid, powder, and granulated form;
“effective for use as an anti-gas and antiflatulent” (Specification 1: ¶¶ 2-3).
Stevens teaches that “[t]he most common dosage formulations for
simethicone are combinations of simethicone with various separate antacids.
In this dosage formulation it is necessary to separate the simethicone from
the antacid to avoid the inactivation of the simethicone” (Stevens, col. 1, ll.
23-27).
A property of magnesium carbonate is that it is capable of acting as an
antacid (Specification 2: ¶ 7). In addition, the Examiner finds that
magnesium carbonate has been used in the art as a lubricant (Wehling) and
filler (Crowley) in the formulation of pharmaceutical compositions into
tablets (Answer 4). According to the Examiner, since Stevens, Wehling and
Crowley do not teach that magnesium carbonate has the property of being
capable of acting as an antacid, this property of magnesium carbonate is
irrelevant to the obviousness rejection of record (Answer 5-6). We disagree,
“[f]rom the standpoint of patent law, a compound and all of its properties are
inseparable; they are one and the same.” In re Papesch, 315 F.2d 381, 391,
137 USPQ 43, 51 (CCPA 1963).
We recognize the Examiner’s assertion that the instant claims are
directed to a composition, and not a method for treating gastrointestinal
disorders amenable to treatment with simethicone (Answer 5). While this
may be true, the Examiner relies on Stevens to teach a pharmaceutical
1 More simply the claimed composition comprises about 5 parts granular
simethicone and about 3.6-4.6 parts magnesium carbonate.
3
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Last modified: September 9, 2013