Appeal No. 2005-1452 Page 6
Application No. 09/915,549
that the solvation/dispersion system of Davis does not result in a dispersion having
the active ingredient in a concentration equal to or greater than the amount required
to exceed the solubility limits of the active ingredient in the oil or aqueous phases.
See In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657-58 (Fed. Cir. 1990); and
In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977). Appellant
has not directed us to evidence that the product of Davis is substantially different from
the claimed product.
Appellant argues that the active ingredient concentrations of Davis are not
sufficiently high to obtain acceptable injection volumes. (Brief, p. 25). We do not
agree. Davis discloses the active ingredients are present at levels which can be used
clinically. (Col. 4, ll. 50-53). Davis also provides examples which show the injection
of the dispersion. (Cols. 8-9). Furthermore, Appellant acknowledges, Reply Brief
page 9, that the “emulsion according to Davis or Kaufman can be administered to the
patient.”
Appellant asserts, Reply Brief page 9, the present invention reduces the
amount of emulsion carrier necessary to provide the same drug dose. This argument
is not persuasive of patentability because claim 1 is not limited to the same scope.
Specifically, the claim does not provide specific amounts for the carrier and drug
dosage.
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