Appeal No. 2004-0250 Page 7
Application No. 09/226,412
14. A method of treating diabetes, comprising administering to a subject in
need thereof a therapeutically effective amount of the powder formulation according to
claim 1.
15. A method of treating diabetes according to claim 14, wherein said insulin
analogue is LysB28ProB29 human insulin or AspB28 human insulin.
Appellants argue that method claims 14 and 15 of Jensen are patentably distinct
from the method claims of the present application because:
In contrast to the claims in the Jensen ‘028 patent, the claims in the
present application do not recite three of the four limitations required by
the Jensen ‘028 claims. Specifically, the claims in the present application
do not recite
(1) an enhancer,
(2) the percent weight crystalline parameter, or
(3) the molar ratio parameter required by the claims of the Jensen ‘028
patent.
Thus, the claims in the present application do not anticipate the claims in
the Jensen ‘028 patent.
Further, the claims in the present application do not render obvious the
claims in the Jensen ‘028 patent. Nowhere in the claims in the present
application is there a suggestion of (1) an enhancer, (2) a percent weight
crystalline requirement, or (3) a molar ratio parameter of insulin analog to
enhancer. In addition, one of ordinary skill in the art would not be
motivated by the claims of the present invention to use an enhancer, or to
use 50% by weight of crystalline particles, or to use a particular ratio of
insulin analog to enhancer.
Reply Brief, page 5.
Appellants are correct in stating that the claims in the present application do not
recite an enhancer, the percent weight crystalline parameter or the molar ratio
parameter set forth in claims 14 and 15 of Jensen. However, appellants’ analysis does
not view the present claims in light of relevant prior art in determining whether the
present claims render the Jensen claims obvious under 35 U.S.C. § 103. The relevant
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