Appeal No. 2003-0925
Application No. 09/774,271
Morris, 127 F.3d 1048, 1054, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997)
(citations omitted).
Here, the examiner interprets appellants’ claim as using a
plasticized PVP polymer because of certain ingredients set forth in
appellants’ specification that can be mixed with the PVP polymer.
We find that the examiner’s interpretation fails in two ways.
First, the examiner concludes that the PVP polymer is plasticized
based upon certain ingredients that can be mixed with the PVP
polymer. Yet, the examiner does not support this conclusion
sufficiently. For example, the examples in appellants’
specification allow for 0% mannitol. Certainly, this amount would
not plasticize the PVP polymer. Furthermore, the examiner does not
explain what amount of mannitol would be needed to plasticize the
PVP polymer. Secondly, the examiner’s interpretation of the claims
is not consistent with the specification. As demonstrated above,
with regard to appellants’ specification, each example states that a
non-plasticzed PVP polymer is used as the mucoadhesive.
Hence, because the examiner’s interpretation of the claims is
incorrect, the examiner’s application of the references does not
support a prima facie case of obviousness of what is really being
claimed, i.e., a device for transmucosal delivery of active
substances comprising a non-plasticized PVP polymer.
Conclusion
In view of the above, we reverse each of the 35 U.S.C. § 103
rejections, but we affirm each of the obviousness-type double
patenting rejections.
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