Appeal No. 2001-1044 Page 12
Application No. 08/881,216
the presence of a preserving agent, or freeze-drying liposomes which contain a
preserving agent internally.” Page 4.1
The examiner concluded that it would have been obvious to a person of
ordinary skill in the art to combine the terbinafine-containing liposomes made
obvious by Birnbaum, Lopez-Berestein, and Janoff, with the method of
lyophilization in the presence of a disaccharide (e.g., maltose), taught by Crowe,
because Crowe teaches that this method preserves the liposome composition
without degradation. Examiner’s Answer, page 8. We agree with the examiner’s
reasoning and conclusion.
Appellants argue that “the three primary references do not suggest the
composition of the invention. . . . Lyophilizing an unobvious invention cannot be
obvious even if there is teaching of lyophilizing related compositions.” Appeal
Brief, page 6. This argument is not convincing, because we have already
concluded that the composition of claim 18 would have been obvious in view of
Birnbaum, Lopez-Berestein, and Janoff. Since we disagree with the premise of
Appellants’ argument, we also disagree with their conclusion.
Appellants also argue that “Crowe discloses preservation of liposomes by
lyophilisation; however, the thrust is towards trehalose as the preserving agent
(see text and examples).” Appeal Brief, page 6. This argument is also
unpersuasive. Crowe discloses that maltose and sucrose are “especially
preferred” preserving agents, along with trehalose. Thus, it would have been
1 “Lyophilization” and “freeze-drying” are synonymous. See Crowe, abstract (“In a preferred
embodiment, trehalose is used as a preserving agent, both inside the liposomes . . . and
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