Appeal No. 2004-0482 Page 5
Application No. 09/216,247
the Answer, it appears to be the examiner’s position that these polyglycerol
esters of fatty acids would meet the limitation in appellants’ claim drawn to “at
least one medium chain glycerol ester of a fatty acid.” However, as appellants
point out (Brief, page 5), “[e]ven if one was to accept this characterization of the
teachings of Lacy, Lacy clearly does not disclose ‘a composition consisting of a
fibrate dissolved in at least one medium chain glycerol ester of a fatty acid’ as
required by claim 1. For the following reasons we agree with appellants.
According to Lacy (column 6, lines 14-16), these lipophilic surfactants “are
capable of serving as the digestible oil component in this invention, or serving as
the source of lipolytic products,” therefore in a modification of Lacy’s preferred
carrier system a separate digestible oil component may be omitted. Accordingly,
such a composition would include (1) a hydrophobic drug, (2) a hydrophilic
surfactant, and (3) a lipophilic surfactant. Assuming, arguendo, Lacy’s
hydrophobic drug and lipophilic surfactant are within the scope of appellants’
claimed invention; Lacy’s composition includes an additional component, a
hydrophilic surfactant, which is specifically excluded from appellants’ claimed
invention. Accordingly, this embodiment of Lacy’s disclosure does not support
the examiner’s position.
Lacy also carves out an exception to the use of lipophilic surfactants, we
note that Lacy discloses (column 8, lines 14-18), this applies to “one class of
hydrophilic surfactants, namely the transesterification products of
polyoxyethylene glycol with glycerol esters of capric and caprylic acids … [which
do] not substantially inhibit the in vivo lipolysis of digestible oils.” According to
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