Appeal No. 95-1820
Application 08/115,836
present specification, primary nucleation is defined as
spontaneous whereas secondary nucleation is induced by the
addition of crystal nuclei. We are told that, compared to
crystalline ibuprofen of the prior art, the crystalline ibuprofen
of the present invention flows more evenly through high volume
processing equipment and compacts more readily into tablets or
capsules.
Claims 1 and 15 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Gordon.
Upon careful consideration of the opposing arguments
presented on appeal, we concur with appellants that the applied
Gordon reference fails to establish a prima facie case of
obviousness for the claimed subject matter. Accordingly, we will
not sustain the examiner's rejections.
We consider first the examiner's rejection of claim 1.
Although the examiner recognizes that Gordon does not teach the
claimed process steps of crystallization, the examiner reasons
that because the claimed "steps of seeding, cooling and
separation are inherently known to be a part of a crystallization
process, [it] would have been easily obvious to one of most basic
skill in the art" to perform the claimed process (page 2 of
Answer). However, the flaw in the examiner's reasoning is that
the claimed process requires preparing crystalline ibuprofen
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