Appeal 2007-1378
Application 10/327,459
1 Azithromycin A is not considered to be amenable to the production of
2 directly compressible tablets of azithromycin formulation. Specification,
3 page 3:1-4.
4 However, as Tenengauzer reveals, azithromycin ethanolate
5 monohydrate is a suitable candidate for dry granulation tablet formation
6 involving (1) roller compaction (Example 4; col. 15:21) and pressing
7 (Example 4; col. 15:32) and (2) milling (Example 5; col. 18:14) and pressing
8 (Example 5; col. 18:19).
9 Curatolo also tells us that azithromycin dihydrate is a suitable
10 candidate for dry granulation or direct compression. Col. 7:51-53.
11
12 E. Principles of law
13 A claimed invention is not patentable if the subject matter of the
14 claimed invention would have been obvious to a person having ordinary skill
15 in the art. 35 U.S.C. § 103(a); Graham v. John Deere Co. of Kansas City,
16 383 U.S. 1 (1966).
17 Facts relevant to a determination of obviousness include (1) the scope
18 and content of the prior art, (2) any differences between the claimed
19 invention and the prior art, (3) the level of skill in the art and (4) any
20 relevant objective evidence of obviousness or non-obviousness. Graham,
21 383 U.S. at 17-18.
22 A person having ordinary skill in the art uses known elements and
23 process steps for their intended purpose. Anderson's-Black Rock, Inc. v.
24 Pavement Salvage Co., 396 U.S. 57 (1969) (radiant-heat burner used for its
25 intended purpose in combination with a spreader and a tamper and screed);
10
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