Appeal No. 2004-1731 Page 5
Application No. 09/524,113
2. one emulsifier (e.g., castor oil and hydrogenated castor oil
ethoxylates, see appellants’ claim 1), and
3. at least one oil.
We note that despite appellants’ arguments to the contrary4, Lacy’s hydrophilic
surfactant appears to be the same as appellants’ castor oil and hydrogenated
castor oil ethoxylates emulsifier. Therefore, as we understand the issue on
appeal, the question is whether Lacy suggests a composition wherein either the
lipophilic surfactant is not necessary, or the lipophilic surfactant can serve as
digesitable oil.
In this regard, we note that Lacy carves out an exception to the use of
digestible oils. Specifically, Lacy discloses (column 4, lines 1-5), “[i]f the lipophilic
surfactant is itself a digestible oil, or can serve as the source of lipolytic products,
then in a modification of the preferred carrier system a separate digestible oil
component may be omitted….” At column 6, lines 15-17, Lacy specifically
discloses that the lipophilic surfactants listed at column 4, line 39 through column
5, line 25, “are capable of serving as the digestible oil component….”
Appellants’ claim 1 does not define a specific oil for use in the claimed
composition. In this regard, we note that appellants’ specification (page 5, lines
13-17) discloses “[s]uitable oils include, but are not limited to, any
pharmaceutically acceptable oil….” Accordingly, we find that the compounds set
forth at column 4, line 39 through column 5, line 25, which “are capable of
3 Appellants disclose (specification page 16-22), fenofibrate “is part of a lipid-regulating agent
class of compounds commonly known as fibrates….”
4 See e.g., Brief, page 4, wherein appellants argue “[t]he emulsifiers used in the present invention
do not exhibit or demonstrate the property of not substantially inhibiting the lipolysis of the oil.
Accord Reply Brief, page 3.
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