Appeal No. 2004-1982 Page 3
Application No. 09/878,034
(Fed. Cir. 1988). The examiner asserts here that the products appear to be the
same because Morella teaches the same ingredients, thus the release profiles
should be the same. Morella also teaches, however, that “[a]djusting the
microcapsule coating composition allows modification of the release profile for
the material. Controlling the process parameters including temperature, solvent
concentration, spray dryer capacity, atomizing air pressure, droplet size,
viscosity, total air pressure in the system and solvent system, allows the
formation of a range of coats, ranging from dense, continuous, non-porous coats
through to more porous microcapsule/polymer matrices.” Morella, page 15, lines
18-26. In addition, the specification teaches that “[t]he release profile of taste
masked particles of the present invention can also be varied by changing the
ratio of enteric and insoluble film forming polymers in the coating formulation.”
Thus Morella teaches, and the instant specification supports, that one of ordinary
skill in the art would not have necessarily expected the release profile of the
Morella particle to be the same as the release profile of the instantly claimed
invention based on the fact that they both comprise the same ingredients.
With respect to the release profile as disclosed by Morella, appellants
argue, and the examiner does not appear to dispute, that Example 3 is the
“closest disclosure.” Appeal Brief, page 4; see also, Examiner’s Answer, page 6.
In example 3, according to appellants, “sodium diclofenac was coated with a
coating solution of ethylcellulose, hydroxypropyl methylcellulose acetate
succinate and dichloromethane.” Appeal Brief, page 4. The release profile as
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