Appeal 1997-3391
Application 08/212,578
simply respond that there is nothing in Federal Circuit
jurisprudence which requires the examiner or us to accept an
unsupported assertion of an expert. Rohm and Haas Co. v. Brotech
Corp., 127 F.3d 1089, 1092, 44 USPQ2d 1459, 1462 (Fed. Cir.
1997). We decline, in this case, to credit the unsupported
statements in applicants' specification.
Applicants rely on the proportions of flupirtine to release
composition and the release rate. But, our reading of the record
reveals that a person having ordinary skill in the art would have
been able to determine operable, if not optimal, release rates
for a particular drug (Tamás, col. 5, line 25). The mere fact
that Lobisch reveals a dosage range (col. 3, lines 28-30) tells
us that a person having ordinary skill in the art would have
known how to determine a proper dosage. Likewise, a person
having ordinary skill in the art would have been able to
determine the ratio of flupirtine to release composition.
Tamás reveals a high active ingredient ratio and Eichel describes
a variety of drug/sustained release component ratios (col. 4,
lines 12-24).
Applicants criticize Eichel because it delivers its drug in
the small intestine. Curiously, applicants do not tell us how
flupirtine is delivered to the body when taken orally.
The rejection is attacked on the ground that Lobisch does
not attempt to solve any problem described by Eichel and Tamás
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