Appeal 2007-1082
Application 10/327,383
1 Curatolo further confirms that the choice of processing approach
2 depends on the properties sought to be obtained.
3 One of those properties is “density” which is a property of interest to
4 appellants. See Specification, page 48, Table 6 (density and tapped density).
5 Curatolo still further confirms that wet granulation is preferred as a
6 step in making azithromycin tablets.
7 Many of the examples of Curatolo describe products with
8 azithromycin dihydrate—which, of course, is outside the scope of the claims
9 on appeal.
10 However, nothing in Curatolo limits the applicability of the Curatolo
11 invention to azithromycin dihydrate.
12
13 E. Principles of law
14 A claimed invention is not patentable if the subject matter of the
15 claimed invention would have been obvious to a person having ordinary skill
16 in the art. 35 U.S.C. § 103(a); Graham v. John Deere Co. of Kansas City,
17 383 U.S. 1 (1966).
18 Facts relevant to a determination of obviousness include (1) the scope
19 and content of the prior art, (2) any differences between the claimed
20 invention and the prior art, (3) the level of skill in the art and (4) any
21 relevant objective evidence of obviousness or non-obviousness. Graham,
22 383 U.S. at 17-18.
23 A person having ordinary skill in the art uses known elements and
24 process steps for their intended purpose. Anderson's-Black Rock, Inc. v.
25 Pavement Salvage Co., 396 U.S. 57 (1969) (radiant-heat burner used for its
12
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