Appeal No. 95-4433
Application No. 07/994,040
On this appeal, the examiner and the appellants have
advanced respectively reference evidence of obviousness and
declaration evidence of nonobviousness. Accordingly, we will
assess the patentability of the here claimed invention under
35 U.S.C. § 103 based upon the totality of the record, by a
preponderance of evidence with due consideration to
persuasiveness of argument. In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
Example 3 of the Bright reference discloses making a
crystalline product said to constitute azithromycin
monohydrate using ethanol and water. Consistent with the2
appellants’ arguments, it is questionable whether one with
ordinary skill in the art would have found in the Desposato
reference any reason, suggestion or incentive to modify
Bright’s aforementioned disclosure in such a manner as to
obtain a crystalline azithromycin dihydrate as required by
appealed claim 1 or a method for the preparation thereof from
a mixture of tetrahydrofuran and a (C -C ) aliphatic
5 7
hydrocarbon in the presence of at least two molar equivalents
2On the record before us, it is undisputed that
azithromycin monohydrate constitutes the product of Example 3.
3
Page: Previous 1 2 3 4 5 6 7 Next
Last modified: November 3, 2007