Appeal No. 2005-0416 Page 6
Application No. 09/970,020
optimal amount of gums/polymers and other adjuvants to produce
the right formulation which is free flowing and which can be
compressed to a slow release solid dosage unit. This procedure is
time intensive and costly.
Against this backdrop, Baichwal disclose (column 3, line 61 – column 4, line 5),
[i]t is therefore an object of the present invention to provide a free-
flowing directly compressible slow release excipient which can be
used for a wide variety of therapeutically active medicaments. … It
is a further object of the present invention to provide a free-flowing
directly compressible slow release excipient which is relatively
inexpensive to manufacture due to the lack of coatings and
expensive equipment.
According to the examiner (Answer, page 4), “[o]ne would be motivated to use
the excipients system of Baichwal for the controlled release portion of the bi-layer
tablet because[,] … [inter alia, it] is inexpensive to manufacture and can be easily
compressed into tablets which eliminates the use of expensive manufacturing
equipment.” Thus, notwithstanding appellants’ assertions to the contrary (see
e.g., Brief, pages 4-6; Reply Brief, pages 4-5), Baichwal expressly discloses the
advantages of using a heteropolysaccharide and polysaccharide gum excipients
over the use of HPMC. Accordingly, we are not persuaded by appellants’
arguments.
On reflection, we find no error in the examiner’s finding that the invention
of appellants’ claim 24 is prima facie obvious over the combination of Gilbert and
Baichwal. Accordingly, we affirm the rejection of claim 24 under 35 U.S.C. § 103
as being unpatentable over Gilbert in view of Baichwal. As discussed supra
claims 25-54 fall together with claim 24.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 CFR § 1.136(a).
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