Appeal No. 2004-0494 Page 2
Application No. 09/215,831
Lacy et al. (Lacy) 5,645,856 Jul. 8, 1997
GROUND OF REJECTION
Claims 1, 3-5, 12, 14, 16 and 18 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 monoglyceride,
which can be glyceryl caprylate, glyceryl oleate, or glyceryl caprylate/caprate
(see e.g., appellants’ claim 4 and appellants’ specification page 3, lines 33-36).
According to the examiner (Answer, page 3), “Lacy discloses
compositions containing fenofibrate. … Although Lacy does not teach
compositions containing only monoglycerides, it is deemed obvious to one of
ordinary skill in the art [at the time the invention was made] to remove any
component of Lacy if that compound is deemed unnecessary….” In response
appellants assert (Brief, page 3), “an essential element of the Lacy carrier
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