Appeal No. 2000-1909 Page 5
Application No. 08/790,528
disease. While FDA Consumer teaches the combination of an acid neutralizing
agent and an anti-gas agent in a chewable tablet for the treatment of
gastroesophageal reflux disease, it also provides no teaching or suggestion for
incorporating the active agents into a chewing gum matrix. Thus, the examiner
has failed to set forth a prima facie case of obviousness.
Claims 10-20 stand rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Caldwell, Gottwald, France or Upson and Drug Facts
and Comparisons, Beringer and Cherukuri.
According to the rejection, Caldwell, Gottwald, France and Upson each
teach a chewable tablet comprising an H-2 receptor antagonist, i.e., an acid
production inhibitor, and an acid neutralizing agent. Drug Facts and
Comparisons is relied upon for teaching chewable tablets comprising a
hydroxide or carbonate antacid, i.e., an acid neutralizing agent, and simethicone,
i.e., an anti-gas agent. The answer reasons that
[a]s both acid-production inhibitors in combination with antacids
and antiflatulents in combination with antacids have been shown to
be well known for use in chewable tablets for the treatment of
gastroesophageal disorders, it is expected, absent unexpected
results, that a tablet comprising all three ingredients would also be
useful in the treatment of gastroesophageal disorders. The court
has determined that the combination of two or more ingredients
known in the art for the same uses is obvious, and unpatentable.
(In re Kerkhoven 205 USPQ 1069 (CCPA 1980)) which states: “It is
prima facie obvious to combine two compositions each of which is
taught by prior art to be useful for same purpose in order to form [a]
[sic] third composition that is to be used for very same purpose;
idea of combining them flows logically from their having been
individually taught in prior art . . .”)
Examiner’s Answer, pages 6-7.
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