Appeal No. 2004-1112 Page 10
Application No. 09/829,707
comprising administering “an acarbose formulation to the patient, wherein such
formulation does not include a lipase inhibitor.”
Rosner discloses a method “to control weight gain, to provide weight loss
and for the prevention or treatment of diabetes.” Column 2, lines 11-13. The
method comprises ingesting acarbose with meals that contain carbohydrates.
See column 1, lines 8-10; claims 1 and 3. Rosner does not teach administering
the acarbose in combination with a lipase inhibitor, and therefore the patent is
most reasonably interpreted to disclose an acarbose formulation that does not
include a lipase inhibitor.
Appellant argues that Rosner does not disclose an acarbose “formulation”,
as called for in the claim, because “[a]s defined in the specification and recited in
the claims, an acarbose formulation is a mixture of acarbose and a sustained
release matrix. (Ex. 1, pg. 1, lns 18-20).” Appeal Brief, page 4.3
This argument is not persuasive. We have reviewed the entire
specification, including the portions cited by Appellant, but have found no
definition of the phrase “acarbose formulation” that shows an intention to limit the
phrase to formulations containing a sustained release matrix. On the contrary, a
acarbose formulation containing a sustained-release matrix is invariably referred
to as a “sustained release formulation”, or something similar. See, e.g., the title
of the application (“Method and composition for controlled release acarbose
formulations”); page 2, line 15 (“slow release acarbose formulation”); page 2, line
3 Appellant also argued that Rosner is not prior art under 35 U.S.C. § 102(a). As explained above
(pages 3-5), Appellant is correct, but the reference is prior art under 35 U.S.C. § 102(e).
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