Appeal No. 2005-1452 Page 5
Application No. 09/915,549
Appellant’s arguments are not persuasive. The dispersion of the claimed
invention contains “the active ingredient dissolved in a quantity that is greater than the
quantity which results additively from its maximum solubility in the oily and the
aqueous phase of the emulsion.” It appears that Appellant’s arguments regarding
supersaturation concentrations refer to the solubility of the active ingredient in the oil
or aqueous phases. The claim language requires only a concentration slightly above
the maximum solubility in the oily and the aqueous phase of the emulsion. Davis
utilizes a surfactant system for dispersing the active ingredient. It is not disputed that
the solvation system of Davis allows an active ingredient to be dispersed in an
emulsion. Appellant has not argued that the solvation system of Davis does not
provide and is not capable of providing an amount of active ingredient contained in
the dispersion of Davis is equal to or greater than the amount required to exceed the
solubility limits of the active ingredient in the oil or aqueous phases.1
Appellant argues, Reply Brief page 5, that the product of Davis is different from
the claimed invention. Appellant has not relied on evidence in support of this
argument. The active components in the dispersion of Davis are the same as
required by the claimed invention. As stated above, Davis utilizes a surfactant
system for dispersing the active ingredient. However, Appellant has not established
1 Davis discloses that the active ingredient is present at levels that are equal to or exceed its'
solubility. Specifically, Davis discloses that during heat sterilisation of amphotericin B a precipitate can
result which can be eliminated by removal of the solvent and the addition of an antinucleating agent.
(Cols. 7-8).
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