Appeal No. 2006-3234
Application No. 90/006,410
the example 4 composition, which is said to have a 2.8% residual moisture
content and to contain polyacrylic acid as the hydrocolloid-forming agent,
is commensurate in scope with the broader claimed subject matter of
claim 1.
The examiner’s rejection under 35 USC § 103(a) in view of Abdallah,
Evenstad, and Otaya is AFFIRMED.
Evenstad
The examiner relies upon Evenstad for a teaching of controlled release
tablets comprising water soluble drugs and having hydroxypropyl cellulose
as a sustained release agent. The examiner notes that the tablets of Evenstad
are made by wet granulation and have a residual moisture content of “less
than about 7%, or less than 5%.” According to the examiner “it would have
been obvious for one of an ordinary skill in the art at the time of the instant
invention to adjust the moisture content during the wet granulation of
metformin tablets of Abdallah,…because Evenstad suggests preparing
tablets of water soluble medicaments containing release retarding agent with
a final moisture content of less than 7% (preferably <5%) for controlled
release of the drug.” (Answer at 7).
In our view, the Evenstad teaching of less than 5% residual moisture
content, without more, would not have made it obvious to one skilled in the
art to select 0.5-3% residual moisture content for the metformin tablet of
Abdallah. We note that the examiner has not pointed out whether either
Abdallah or Evenstad recognized moisture content as a variable that relates
to capping. The examiner does not point out where Abdallah discusses
residual moisture content at all. We have not been directed to any portion of
Evenstad explaining why less than 5% moisture content was selected or
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