Appeal 2007-0526
Application 10/141,032
does not render any particular formulation less obvious. This is especially
true because the claimed composition is used for the identical purpose taught
by the prior art.”).
Thus, because Vaghefi lists tobramycin among therapeutic agents
suitable for inclusion in inhaled powder formulations, one of ordinary skill
would have been motivated to include it in such formulations. Because of
the advantages disclosed for Edwards’ formulations, one of ordinary skill
would have been further motivated to include tobramycin in Edwards’
inhaled powder compositions. Moreover, Appellants do not point to, and we
do not see, any evidence supporting the assertion of undue experimentation.
Therefore, because Vaghefi lists tobramycin as an antibacterial agent
suitable for inhaled administration in powder form, we agree with the
Examiner that one of ordinary skill would not have had to engage in undue
experimentation to put tobramycin to that use. Moreover, because the
rationale for including tobramycin in Edwards’ formulations is derived only
from the references, we do not agree that one of ordinary skill would have
arrived at the claimed invention only through hindsight.
Appellants argue that the unexpected results of the claimed invention
“negate a finding of obviousness with respect to the present claims” (Br. 15-
17). Appellants urge that Example 5 of the Specification (pages 23-24)
demonstrates that tobramycin administered via the claimed formulations had
unexpected improvements in certain properties when compared to nebulized
tobramycin (Br. 16). Appellants argue that because claim 20 contains a
specific limitation regarding interpatient variability with respect to lung
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