Appeal No. 2006-0139
Application No. 09/583,228
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established when the teachings from the prior art itself would appear to have suggested
the claimed subject matter to a person of ordinary skill in the art. In re Bell, 991 F.2d
781, 783, 26 USPQ2d 1529, 1531 (Fed. Cir. 1993). An obviousness analysis requires
that the prior art both suggest the claimed subject matter and reveal a reasonable
expectation of success to one reasonably skilled in the art. In re Vaeck, 947 F.2d 488,
493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991). With this as background, we analyze
the prior art applied by the examiner in the rejection of the claims on appeal.
According to the examiner (Answer, pages 3-4)
Morella et al. … teaches a sustained release pharmaceutical composition
having a core element containing an antihypertensive agent such as
Verapamil Hydrochloride, binding agent, such as PVD, modified
celluloses, and other well known pharmaceutical carrier and excipients; a
coating comprising a methacrylic polymer (1-30% wt., soluble at a pH from
6-7.5 in the intestines), hydroxypropyl methylcellulose (4-20% wt.),
polyethylene glycol (15-35% wt.) and a filler such as silicon dioxide (4-30%
wt.), see, particularly, claims 1, 2, 7 and 9 as well as Col. 4, line 24.
column 11, lines 3-33. Morella … also teaches that the active ingredient
in the pharmaceutical composition reaches its maximum concentration
between about 4 and about 30 hours, col. 24, claim 1 and that the
bioavailability of the active agents in the pharmaceutical pellet is not
compromised by food, col. 7, lines 34-40. Morella discloses at least one
polymer which is substantially insoluble at acidic pH (i.e., that of the
stomach) but at least partially soluble at a less acidic to basic pH (i.e., the
pH of the intestine), see col. 6, lines 43-52[,] col. 7[,] lines 34-62 in
particular.
Morella … does not teach the particular composition containing the
specific ingredients in the amounts herein.
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