Ex parte KUNIN - Page 4




          Appeal No. 94-1545                                                           
          Application 07/939,990                                                       
          with a pharmaceutically acceptable acid resistant enteric                    
          phthalate soluble in intestinal juice of the small intestine,                
          and (2) an acidic lipid regulator, e.g., gemfibrozil (Ghebre-                
          Sellassie, col. 6, Claim 1).                                                 
               We find that the inventive compositions Ghebre-Sellassie                
          describes are not reaction products at all.  In fact, Ghebre-                
          Sellassie coats the basic anion exchange resin lipid regulator               
          for the express purpose of preventing a salt-forming reaction                
          between the basic anion exchange resin lipid regulator and other             
          known acidic lipid regulators, e.g., gemfibrozil and nicotinic               
          acid.  Ghebre-Sellassie teaches that salt-forming reactions                  
          reduce the pharmaceutical efficacy of the individual regulators              
          (col. 1, lines 61 to 65):                                                    
                    Furthermore, the coating process used in the                       
               pretreatment virtually assures that the                                 
               cholestyramine or other ionic component will not                        
               react to any significant extent before it reaches                       
               the proper location in the gastrointestinal tract                       
               so that its efficacy is maximized (emphasis                             
               added).                                                                 
          Thus, Ghebre-Sellassie actually teaches away from the salt                   
          appellant claims.  However, teaching away from the claimed                   
          invention is pertinent to determinations of patentability under              
          35 U.S.C.  103, not findings of anticipation under  102.                   
               Nevertheless, why the examiner cannot understand that a salt            
          is the reaction product of an acid and a base escapes us.  While             

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