Appeal 2007-0913
Application 09/888,126
have been obvious to the ordinary artisan as such methods were known and
practiced in the art (Answer 4-5).
The Specification teaches at page 26 that “[v]arious suitable devices
and methods of inhalation which can be used to administer particles to a
patient’s respiratory tract are known in the art,” and lists a number of
suitable prior art inhalers, as well as “others, such as known to those skilled
in the art.” In addition, both Patton (for example, see the abstract) and
Edwards (see, for example, column 25, Example 12) teach the delivery of
particles of insulin to the lungs, but do not specifically teach the use of a
breath-actuated inhaler.
The panel cites Bacon (U.S. Patent No. 5,503,144, issued April 2,
1996) to demonstrate that breath actuated dry powder inhalers and their use
were known in the art, and thus, it would have been obvious to dispense the
formulation of claim 51 using any dry powder inhaler known to the ordinary
artisan, such as that taught by Bacon. The rapid release of insulin would be
an inherent result of the delivery of the formulation of claim 5 to lungs using
such breath-actuate, dry powder inhalers. Because our reasoning differs
from that of the Examiner, and in order to give Appellants an opportunity to
respond, we designate this affirmance as new grounds of rejection under 37
C.F.R. § 41.50(b).
CONCLUSION
In summary, we affirm the rejection of claims 1, 3-18, 20-39, and 41-60
Because our reasoning as to claims 18, 21-39, and 41-57 differs from that of
the Examiner, we designate the rejection as to those claims only as new
grounds of rejection.
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