Appeal No. 94-1982
Application 07/862,665
(b) imbibing fluid into the compartment thereby causing the third composition to
expand and push against the second composition; and
(c) administering the second composition comprising the drug after the first
drug-free composition is released from the device.
The reference relied upon by the examiner is:
Wong et al. (Wong) 4,783,337 Nov. 8, 1988
The statement of the rejection which appears at pages 2-3 of the Examiner’s
Answer does not identify the claims, statutory basis, or references relied upon in
rejecting the claims on appeal. We will assume on the basis of page 3 of the Final
Rejection that the examiner intended to reject claims 18 through 25 under 35 U.S.C. §
103 as unpatentable over Wong. We reverse this rejection.
As a final requirement, all of the claims on appeal require either (1)
“administering a second composition comprising the drug after the first drug-free
composition is released from the device,” e.g., claim 21, or (2) “administering the dose
of drugs from the drug composition after at least some of the first drug-free composition
is released from the compartment,” e.g., claim 23. The examiner’s rejection simply fails
to come to grips with this aspect of the claimed invention. In relevant part the examiner
states at pages 3-4 of the Examiner’s Answer:
Wong does not specifically describe a method for delaying delivery of a
drug, followed by delivery of the drug. However, it is the position of the
Examiner that the Wong device actually is a delayed drug delivery device,
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