Appeal 2007-0318
Application 09/766,362
THE REJECTIONS BASED ON STEINER AND ILLUM
Claim 3
With respect to claim 3, Appellants additionally argue: “Steiner does
not disclose antihistamines.” (App. Br. 12.) Further, with respect to all the
rejections based on the combination of Steiner and Illum, Appellants argue:
[Illum’s] bioadhesive microspheres adhere to the nasal
mucosa upon contact forming a gel (col 3, lines 2-9) and
have improved bioavailability due to the presence of
absorption enhancers which increase the bioavailability of
the drug (col. 4, line 6-12.). . . . Illum does not disclose or
suggest the inclusion of diketopiperazines in the delivery
system. Illum discloses microparticles with a size range
between 10 and 100 microns (col. 6, lines 13-15). Illum does
not suggest the selection of particles having a narrow size
range of between 10 and 20 microns.
(App. Br. 12.)
Finally, Appellants argue there’s no motivation to combine the two
references. (App. Br. 14.)
The Examiner responds:
Admittedly, Steiner et al. do not disclose antihistamines,
however, Ilum was relied upon for the teachings that it is
well known in the art to incorporate particles formed of
antihistamines as the preferred active substance for nasally
administered formulations. . . . Appellant's argument that
"Illum does not disclose or suggest the inclusion of
diketopiperazines" is not persuasive since Illum was not
relied upon for the teaching of diketopiperazines . . . . The
argument that 'Illum does not suggest the selection of
particles having a narrow size range of between 10 and 20
microns' was not persuasive since the particles of Illum are
taught to be in the size range of between 10 and 100 microns.
This size range clearly encompasses the 'between 10 and 20
microns' claimed by Applicant.
. . . .
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