Appeal No. 95-1820
Application 08/115,836
having an average particle length larger than 150 microns by
cooling a saturated solution of ibuprofen at a particular rate,
and the examiner has not cited any prior art which teaches or
suggests that crystalline ibuprofen of the claimed particle size
can be made by any process. The prior art discussed by Gordon,
which is relied upon by the examiner, evidences that it was
generally known that crystallization procedures produce particle
size of 40 microns. Gordon claims a particle size larger than 18
microns (see claim 17), and EXAMPLE 4 of the reference describes
the largest average particle size as 82.6 microns. Hence,
although the general crystallization procedure is within the
prior art, there is no evidence of record which establishes that
the particular crystallization technique detailed in appellants'
specification for preparing crystalline ibuprofen having an
average particle size larger than 150 microns was obvious to one
of ordinary skill in the art.
We now turn to the examiner's rejection of claim 15 under
§ 103 over Gordon. It is the examiner's position that since
Gordon discloses crystalline ibuprofen having a particle size
range greater than 18 microns, the disclosure of Gordon
"encompasses the particle size range of the claimed invention"
(sentence bridging pages 3 and 4 of Answer). However, it is now
well settled that a prior art disclosure of a potentially
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