Appeal No. 98-2769
Application 08/485,960
would have been clear to one of ordinary skill in the art that each of the secondary electrodes would be
operated in such a manner as to generate different amounts of competitive co-ions in each of the drug-
containing units or therapeutic agent sources so as to maintain the recited different drug or therapeutic
agent delivery rates or dosages associated with each of appellants’ drug-containing units or therapeutic
agent sources.
Method claim 9 and article claim 19 each relate to an embodiment of appellants’ invention
wherein a second electrode is used in the drug-containing reservoir for generating or adding competitive
co-ions to the reservoir as a means for controlling drug delivery rate by varying the ratio of drug ion
concentration to co-ion concentration. In our view, the examiner has advanced no reason why what
appears to be a relatively simple mechanism for maintaining selected control over the delivery rate of a
target species (i.e., a drug or therapeutic agent) in Phipps (U.S. Patent No. 5,125,894) would require
undue experimentation on the part of one skilled in the art in order to implement the same such control
in the context of appellants’ invention.
After a careful consideration of appellants’ disclosure and of the arguments on both sides, it is
our opinion that the level of skill in this art is sufficiently high that the ordinarily skilled artisan would have
been able to make and use appellants’ claimed invention as set forth in claims 9 and 19 on appeal,
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