Ex Parte 5955106 et al - Page 3

                Appeal No.  2006-3234                                                                           
                Application No.  90/006,410                                                                     

                Evenstad “as applied to claims 1-33, 37-59, 62-94, 96, 97, 100-122 and 127-                     
                138 and further in view of Otaya et al.”  (Answer at 3).                                        
                       We affirm the rejection made under 35 USC § 102(b).  We also affirm                      
                the rejection made under 35 USC § 103(a) in view of Abdallh, Evenstad and                       
                Otaya but, because the examiner did not specifically apply Otaya in rejecting                   
                claims 1-33, 37-59, 62-94, 96, 97, 100-122, and 127-138, we designate the                       
                rejection of those claims as a new ground of rejection.  37 CFR 41.50(b).                       
                             II.  Findings of fact                                                              
                             The record supports the following findings of fact by at least a                   
                             preponderance of the evidence.                                                     
                       1. Claim 1 reads as follows:                                                             
                       Pharmaceutical composition comprising metformin as the                                   
                             active substance and a hydrocolloid forming retarding                              
                             agent, wherein the pharmaceutical composition has a                                
                             residual moisture content of about 0.5-3% by weight.                               
                       2. Claim 1 is representative of claims 1-138.                                            
                       3. The Appellant’s brief does not include a statement that or                            
                             reasons why the rejected claims do not stand or fall together as                   
                             to each rejection.3                                                                
                       4. Metformin hydrochloride is called metformin in the ‘106                               
                             disclosure.  (‘106 at 1:4-6).                                                      



                                                                                                               
                3  Moreover, in its reply brief, the appellant did not take issue with the                      
                examiner’s statement that “the appellant’s brief does not include a statement                   
                that this grouping of claims does not stand or fall together and reasons in                     
                support thereof.”  (Answer at 3).                                                               

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