Appeal No. 2004-0482 Page 2
Application No. 09/216,247
Lacy et al. (Lacy) 5,645,856 Jul. 8, 1997
GROUND OF REJECTION
Claims 1, 3-5, 12, and 14-16 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Lacy.
We reverse.
DISCUSSION
Appellants’ claims are drawn to a composition and method of using the
composition. As set forth above, claim 1 is drawn to a composition consisting of
(1) a fibrate, which can be fenofibrate (see e.g., appellants’ claim 3 and
appellants’ specification page 3, lines 28-31), and (2) at least one medium chain
glycerol ester of a fatty acid, which can be caprylate/caprate triglyceride (see
e.g., appellants’ claim 5 and appellants’ specification, bridging paragraph, pages
3-4).
According to the examiner (Answer, page 4), Lacy discloses compositions
containing fenofibrate, “a monoglyceride or a triglyceride, polyglycerol esters of
fatty acids (surfactant) and a cosolvent….” The examiner recognizes, however,
“Lacy does not teach omission of the surfactant.” Id. Nevertheless, the
examiner concludes (id.), “it is deemed obvious to one of ordinary skill in the art
[at the time the invention was made] not to include a surfactant if it is deemed to
be not necessary.” The examiner, however, offers to evidence to suggest that
the components of Lacy’s composition that are not present in appellants’ claimed
composition would be unnecessary in Lacy’s composition. In this regard,
appellants assert (Brief, page 6), “Lacy clearly and unambiguously teaches a
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