Appeal No. 2006-3234
Application No. 90/006,410
in tablets of Abdallah acts as a “hydrocolloid forming extended release
agent.” (Brief at 8).
Like Appellant, Otaya recognizes that capping is a problem in the
tablet making art. Otaya reported that “capping depended on the amount of
moisture and could be almost completely eliminated.” (Otaya at 1).
Thus, at the time of the present invention, one skilled in the art would
have known:
(1) how to make tablets containing metformin and a hydrocolloid
forming retarding agent,
(2) that capping is a problem in tablet making, and
(3) that a way to reduce capping is to adjust the moisture level.
Given this knowledge, it would have been obvious to one having
ordinary skill in the tablet art to select a moisture content for the prior art
metformin tablets that would solve the problem of capping. In this case
obviousness flows from the “normal desire of scientists or artisans to
improve upon what is already generally known.” In re Peterson, 315 F.3d at
1330, 65 USPQ2d at 1382.
Appellant concedes that methyl cellulose is a “hydrocolloid forming
extended release agent” but argues that Abdallah discloses a coprecipitation,
not a wet granulation, technique to be used in forming the methyl cellulose
containing tablets. However, since the representative claims are not limited
to a particular process of making and Appellant has not argued any claim
separately, we do not find this argument persuasive.5
5 We note that the examiner also directed us to Abdallah’s teaching of
ethyl cellulose, used in a wet granulation technique, for a teaching of a
“hydrocolloid forming retarding agent”. However, as Abdallah notes,
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