Appeal No. 2006-0139
Application No. 09/583,228
weight…" and thus is not limited to the preferred embodiment of 1-30% as argued by
appellant. Column 9, line 27-30.
As evidence of non-obviousness, appellant also proffers the Declaration of Dr.
Seth. The Declaration compares the dissolution profile of a selected tablet and coating
of the claimed invention with the tablet and coating of selected example 3 of Morella.
The Declarant argues at numbered paragraph 9 of the Declaration, that the evidence
shows that, the "compositions of Morella and of the invention are different and will
exhibit different behaviour in the gastrointestinal (GI) tract," and the "coated formulation
of the invention has different profiles at different pH." Id., at paragraph 10.
We do not find appellant's Declaration evidence to be convincing or to overcome
the rejection before us. To begin, appellant's Declaration compares the tablet and
coating of Morella example 3, an example in which the components were selected to
"illustrate a prolongation of release" of the active agent. Col. 16, line 8-12. Example 3,
Table 5 of Morella shows that at pH 7.5, at 180 minutes, 28.12 mg of drug was
released. However, the teachings of Morella are not limited solely to those of example
3. For example, if appellant had compared the dissolution profile of the claimed tablet
with that of Morella example 1 (Table 2, pH 7.5, at 180 minutes) a faster release rate of
35.39 mg of drug would have been found. Similarly, example 2 (Table 4, pH 7.5 at 180
and 240 minutes) shows a much greater release of 33.66 mg of drug and 42.7 mg of
drug, respectively.
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