Ex parte MATHIOWITZ - Page 12

          Appeal No. 95-2876                                                          
          Application 07/906,403                                                      

          process for making appellants' spherical particles.  Thus, it               
          is our view that Beck describes spherical particles having a                
          polymer layer of uniform thickness.  In any event, since the                
          types or thicknesses (amount) of polymers are known to affect               
          the release of a drug encapsulated in the polymers, it would                
          have been obvious to one of ordinary skill in the art to                    
          provide a polymer layer having a desired thickness (including               
          uniform thicknesses) to maintain the desired release rate for               
          a given drug.                                                               
               Appellants' arguments regarding phase-separation                       
          properties of the polymers and a phase-separation process for               
          forming microspheres are also noted.  However, none of the                  
          claims recites such limitations.  When the claims do not                    
          recite the allegedly distinguishable features, "appellant[s]                
          cannot rely on them to establish patentability."  In re Self,               
          671 F.2d 1344, 1350, 213 USPQ 1, 7 (CCPA 1982).                             

                             6. New Ground of Rejection                               

               Under the provisions of 196(b), the following new ground               
          of rejection is entered against claims 20 through 23.                       

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