Appeal No. 2004-1188 Page 3
Application No. 09/940,784
The examiner finds (id.), “Gilbert teaches [a] nasal spray composition
comprising active agent, such as … oxymetazoline hydrochloride….” In addition,
the examiner finds (id.), Parnell teaches a nasal spray composition comprising,
inter alia, PVP as a thickener. According to the examiner (Answer, page 6),
“Parnell is relied upon solely for the teachings that more than one polymer can
be used as additive agents in a nasal spray composition.” To be clear, however,
we note that the examiner does not identify, and we do not find, a teaching in
Parnell that suggests using two or more PVPs having different average
molecular weights in the same composition. Nevertheless, the examiner
concludes (Answer, page 4),
it would have been prima facie [sic] obvious for one of ordinary skill
in the art to modify Shimizu’s formulation with the active drug, and
the aqueous carriers in view of the teachings of Gilbert, and PVP
as thickening agent in view of the teachings of Parnell to obtain the
claimed invention, because the references teach the advantageous
results in the use of aqueous nasal formulation useful for the
treatment of respiratory diseases, such as allergy, itchy nose, and
runny nose. The expected result would be an aqueous nasal spray
formulation comprising oxymetazoline HCL and PVP that is stable,
alleviate dryness, and reduce nose-irritation.
Conspicuous by its absence, is the failure of the examiner to identify a
teaching, in the cited prior art, of the use of two or more linear polymers of 1-
Vinyl-2-pyrrolidone having different average molecular weights. Upon review of
the cited prior art, we find that while the cited references teach that PVP is
available in a variety of different average molecular weights, none of the
references relied upon teach or suggest the use of two or more PVPs having
different average molecular weights in the same composition. As appellants
point out (Reply Brief, page 2), “[a]bsent the mention in any reference of record
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