Appeal No. 2004-1188 Page 6
Application No. 09/940,784
“Rybacki teaches PVP having [a] molecular weight of about 10,000, 40,000,
160,000 and 360,000 are useful in [the] pharmaceutical art as a binder,
solubilizer, and thickener (pages 8-10).” Based on this evidence, the examiner
concludes (id.), “it would have been obvious for one of ordinary skill in this art to
modify Gilbert’s formulation using PVP having the molecular weight of Rybacki
with the expectation of [obtaining] at least [a] similar result, because the
references teach that PVP is useful in liquid nasal formulation[s].”
We note, however, that the examiner does not identify, and we do not
find, a teaching in Rybacki that suggests using two or more PVPs having
different average molecular weights in the same composition. Therefore,
Rybacki fails to make up for the deficiency in the combination of Shimizu, Gilbert
and Parnell as discussed above. Accordingly, we reverse the rejection of claims
18-20 and 29-33 under 35 U.S.C. § 103 as being unpatentable over the
combination of Shimizu, Gilbert and Parnell, further in view of Rybacki.
REVERSED
)
Toni R. Scheiner )
Administrative Patent Judge )
) BOARD OF PATENT
)
Donald E. Adams ) APPEALS AND
Administrative Patent Judge )
) INTERFERENCES
)
Demetra J. Mills )
Administrative Patent Judge )
SCHERING-PLOUGH CORPORATION
PATENT DEPARTMENT (K-6-1, 1990)
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