Appeal No. 2001-0941 Page 5
Application No. 08/890,705
3.6% hydroxypropylmethylcellulose. She concluded that “formulating
compositions comprising active ingredients in extracts of St. John’s Wort, and
inactive ingredients such as binders, dissolution regulators, fillers, glidants, and
lubricants, in amounts encompassed by the claimed ranges, would have been
obvious in view of the disclosure of Erdelmeier.” Examiner’s Answer, pages 4-5.
Appellants argue that Erdelmeier does not disclose compositions meeting
the limitations of claim 6. See the Appeal Brief, pages 13-14. Appellants argue
that the claims recite a composition comprising 1.0 to 5.0% binder, while
Erdelmeier’s composition comprises 16% starch, “more than three times the
maximum amount of binder limited by Applicants.” Id. Appellants also argue that
the composition recited in the claims requires 8 to 18% of a dissolution regulator
such as hydroxypropylmethylcellulose, while Erdelmeier’s composition has only
3.6% hydroxypropylmethylcellulose. Finally, Appellants argue that Erdelmeier
discloses hydroxypropylmethylcellulose as a coating on the tablets, not as a
dissolution regulator.
We note, first of all, that our review of Erdelmeier has been hampered by
the examiner’s failure to obtain a translation of the reference, which is in German.
However, since Appellants have not disputed the examiner’s characterization of
Erdelmeier’s Example 8, we will accept it as accurate. Even so, we agree with
Appellants that the reference does not disclose a composition within the scope of
the instant claims. Claim 6 recites a composition comprising
• 40-75% by weight of St. John’s Wort extract,
• 1-5% by weight of a binder (e.g., starch; specification, page 5),
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