Appeal 2007-1378
Application 10/327,459
1 (CCPA 1977). See also In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655,
2 1657-58 (Fed. Cir. 1990).
3
4 F. Discussion
5 Examiner’s § 103 rejection based on Tenengauzer
6 The findings support the Examiner’s holding of obviousness.
7 One azithromycin described as useful by Tenengauzer is azithromycin
8 ethanolate monohydrate—which is not a hydrate of azithromycin.
9 Lubricants said to be useful in making the Tenengauzer product are
10 magnesium stearate and talc. Col. 5:38-39. In Example 4, magnesium
11 stearate and talc are present in an amount of 7.6% [(32.0 + 2.0 {from Part II}
12 + 13.6 + 15 {from Part III})/824 = 7.6%], which falls within the scope of
13 appellants’ claimed range of 0.25-10% lubricant.
14 Tenengauzer also describes addition of excipients. Col. 4:30.
15 We, like the Examiner, find it difficult to distinguish the product made
16 by Tenengauzer from that claimed by appellants. In re Best, supra.
17 Appellants argue that Tenengauzer does not describe all the
18 limitations of claim 1. However, Tenengauzer plainly reveals that a dry
19 blend may have a non-dihydrate azithromycin, an excipient and a lubricant
20 in an amount mentioned in claim 1.
21 Appellants’ principal argument seems to be that Tenengauzer does not
22 describe granules with a Carr’s Compression Index of less that 34%. Appeal
23 Brief, page 12.
24 With respect to the Carr’s Compression Index of less than 34%,
25 appellants’ argument is not convincing.
12
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