Appeal No. 2003-0913 7
Application No. 09/277,049
acidic form by addition of ethanolic ammonia and subsequent crystallization from water-
isopropanol.” Based upon the above findings and analysis, we conclude that salts of
meloxicam are readily obtained from solution. Therefore, the examiner’s position is not
supported by the record before us. Accordingly, the rejection of the examiner under §
112, first paragraph is not sustainable.
The Rejection under § 102(b)
In order for a claimed invention to be anticipated under 35 U.S.C. § 102(b), all of
the elements of the claim must be found in one reference. Scripps Clinic & Research
Found. v. Genentech Inc., 927 F.2d 1565, 1576, 18 USPQ2d 1001, 1010 (Fed. Cir.
1991). The examiner relies upon references to either Trummlitz or Luger to reject the
claimed subject matter and establish a prima facie case of anticipation. It is the
appellants’ position that, “neither Luger et al. nor Trummlitz et al. disclose, suggest, or
otherwise hint at solid pharmaceutical preparations suitable for oral administration that
contain meloxicam salts and a conventional powdered carrier or excipient.” See Brief,
page 8.
Meloxicam identified as (4-hydroxy-2-methyl-N-(5-methyl-2-thiazoyl)-2H-1,
2-benzothiazine-3-carboxamide-1,1-dioxide, specification, page 2 is disclosed by
Trummlitz in Example 1. The sodium salt is disclosed in Example 2 and the N-Methyl-
glucamine salt, i.e., the meglumin salt is disclosed in Example 3. We find that
Trummlitz discloses that the compounds of the invention are utilized in the form of non-
toxic pharmacologically accepted salts which exhibit anti-inflammatory and anti-
thrombotic activity. See column 12, lines 48-57. Meloxicam among other compounds is
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