Appeal No. 2006-0204 Page 5
Application No. 09/896,052
well within the purview of one of ordinary skill in the art” (id., page 5), “[t]herefore,
claim limitations drawn to such features are not considered by the examiner to
impart a patentable quality unto the instantly claimed invention” (id.).
Appellants argue essentially that Lee does not “disclose[ ] any particle size
for anything, much less the claimed average particle size of the active agent
particles” (Appeal Brief, page 6), and that Friend does nothing to make up this
deficiency because Lee and Friend are not properly combinable (id., page 7).
Appellants point out that the “excellent stability” of Lee’s chewable tablets is
attributed to the fact that the medicaments in the soft core are not subjected to
high temperatures, but are combined with the core materials at room temperature
(i.e., 25°C) (id., pages 7-8; Lee, column 3, lines 32-41). Friend’s microcapsules,
on the other hand, are formed by mixing a drug, a solvent and two polymeric
materials, heating the mixture to 70°C or more to dissolve the polymeric
materials in the solvent, and cooling the mixture at a rate and temperature
sufficient to effect phase separation and microencapsulation of the drug (Appeal
Brief, page 8; Friend, column 4, line 66 to column 5, line 50).
The examiner argues that “there is nothing in the Friend [ ] patent that
requires that the incorporation of the disclosed encapsulated drug particles into
oral dosage forms takes place at the same elevated temperature (80°C) at which
the particles were prepared” (Examiner’s Answer, page 6).
Maybe so, but as we understand appellants’ position, it is that the drug in
Friend’s preparation is heated together with a solvent and two polymeric
materials in order to form the microcapsules in the first place. We agree with
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