Appeal No. 2004-1112 Page 8
Application No. 09/829,707
and a sustained-release matrix. Rather, Appellant argues, Patel discloses unit
dosages (e.g., tablets) coated with an extended-release coating. See the Appeal
Brief, pages 7-9. Appellant argues that a coating changes the location of release
of the active agent (from stomach to lower gastrointestinal tract) but does not
provide a steady release of acarbose over an extended period of time, as a
sustained-release matrix does. See id., page 8.
We agree with Appellant. Anticipation under 35 U.S.C. § 102 requires
identical disclosure of the claimed invention in the prior art. See Gechter v.
Davidson, 116 F.3d 1454, 1457, 43 USPQ2d 1030, 1032 (Fed. Cir. 1997)
(“Under 35 U.S.C. § 102, every limitation of a claim must identically appear in a
single prior art reference for it to anticipate the claim.”); “Every element of the
claimed invention must be literally present, arranged as in the claim.”
Richardson v. Suzuki Motor Co., Ltd., 868 F.2d 1226, 1236, 9 USPQ2d 1913,
1920 (Fed. Cir. 1989).
The instant claims are directed to a mixture consisting essentially of
acarbose and a sustained release matrix. See claim 15. The specification
clearly distinguishes between a sustained release coating and a sustained
release matrix:
Sustained release is achieved by a variety of methods. Two
common methods are: 1) providing a sustained release coating
upon tablets or microspheres wherein slow release of the active
ingredient occurs via either gradual permeation through or gradual
breakdown of this coating; or 2) providing a sustained release
matrix, such as a fat, a wax, or a polymeric material intermixed with
the active ingredient in the tablet itself.
See page 3, lines 20-24 (emphasis added).
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