Appeal No. 2006-0251 Page 8
Application No. 10/017,697
composition cannot anticipate appellants’ taste-masked liquid pharmaceutical
composition.
Accordingly, we reverse the rejection of claims 1-4, 7, 8, 10, 11, 13, 15-19,
22-24, 26, 28-33 and 43-46 under 35 U.S.C. § 102(b) as anticipated by White.
Obviousness:
Claim 5, 6, 9, 12, 14 and 20 stand rejected under 35 U.S.C. § 103 as
being unpatentable over White. Each of claims 5, 6, 9, 12, 14 and 20 depend
ultimately from and further limit claim 1, to a recited amount of polyethylene
glycol, polyvinlpyrrolidone, and sweetening agents, as set forth in claims 5, 6, 9,
12 and 14; or to the inclusion of specific antibiotics, as set forth in claim 20.
While the examiner recognizes that White does not teach the limitations of claim
5, 6, 9, 12, 14 and 20, the examiner nevertheless maintains that they would have
been prima facie obvious to a person of ordinary skill in the art at the time the
invention was made. The examiner, however, does not rely on any additional
evidence to supplement the teachings of White.
As discussed above, White teaches a composition (see e.g., claim 1) that
differs from the claimed invention only in the inclusion of a tri-ester as an
essential component of the composition. In addition, as discussed above, the
evidence of record establishes that the essential tri-ester is bitter and renders a
composition comprising a drug, polyethylene glycol and polyvinyl pyrrolidone
unacceptably bitter. The examiner provides no evidence, and therefore has not
established, that it would have been prima facie obvious to a person of ordinary
skill in the art at the time the invention was made to prepare White’s composition
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