Appeal No. 2005-1746 Page 4
Application No. 09/963,738
claims differ from the Shimuzu [ ] patent by claiming that the base material is for
dry direct tableting.” Page 4.
Based on the panel’s construction of the claim, however, the fact that
Shimuzu fails to specifically teach that the base material is for dry direct tableting
is irrelevant, as Shimuzu teaches all of the components of the composition of
claim 1, i.e., a low-substituted hydroxypropyl cellulose impregnated with a sugar
or sugar alcohol, and thus would anticipate the composition of claim 1. Thus, we
need not reach the teachings of Koyanagi, and as we find no error in the
examiner’s conclusion that the subject matter of claim 1 is obvious, the rejection
is affirmed.1
Appellant argues that the instant claims require that the low-substituted
hydroxypropyl cellulose be impregnated with a sugar or sugar alcohol, where,
upon drying, the sugar or sugar alcohol exists inside the low-substituted
hydroxypropyl cellulose. See Appeal Brief, page 4. Shimuzu, according to
appellant, uses a fluidized bed granulator in Working Example 6 and others,
which appellant asserts allows the sugar or sugar alcohol to attach only to the
surface of the low-substituted hydroxypropyl cellulose. See id. Thus, appellant
contends, the product of Shimizu is structurally different from the claimed
product. See id.
Appellant’s arguments are not found to be convincing. Appellant’s
specification specifically teaches that:
1 In fact, under the construction of the claim set forth here, claim 1 may in fact be anticipated by
the Shimizu reference.
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