Appeal No. 2005-1452 Page 8
Application No. 09/915,549
Claims 64-66 recite that the active ingredient dissolved is greater than the
additive quantity by a factor of 2, factor of 5, or a factor of 10. The Examiner has
determined that both Davis and Kaufmann disclose forming a dispersion containing
an active ingredient. As stated above, the Appellant has not established that the
concentration of the dispersed active ingredient is different that the claimed
invention.2
The Examiner rejected claims 2-11 under 35 U.S.C. § 103(a) as unpatentable
over Davis alone or Kaufman alone. (Answer, pp. 4-9). We reverse.
The Davis and Kaufmann references employ a solvent to aid in the dissolving
the active ingredient. The Examiner has not identified a disclosure in the references
that indicate that the active drug is present in solid crystalline form as recited in claim
2. Thus, the subject matter of claim 2 and claims 3-11, which depend on claim 2, is
not obvious over Davis or Kaufmann.
CONCLUSION
The rejections of claims 1, 12-15, 19-66, 143, 144, 146 and 148-150 under 35
U.S.C. § 103(a) are affirmed. The rejections of claims 2-11 under 35 U.S.C. § 103(a)
are reversed.
2 When the USPTO shows sound basis for believing that the invention of the Appellant and the
prior art are the same or slightly different, the Appellant has the burden of showing that they are not. See
In re King, 801 F.2d 1324, 1327, 231 USPQ 136, 138 (Fed. Cir. 1986); In re Ludtke, 441 F.2d 660, 664,
169 USPQ 563, 566 (CCPA 1971).
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