Appeal No. 2006-1253 Page 8
Application No. 09/969,451
appellants’ assertion that Apelian fails to suggest a syringeable antibiotic
formulation comprising florfenicol, a preservative, and N-methyl-2-pyrrolidone.
Further, for the reasons set forth above, we disagree with appellants’ assertion
that Apelian teaches away from appellants’ claimed invention.
Accordingly, we are not persuaded by appellants’ argument.
The prima facie case:
For the foregoing reasons, we find no error in the examiner’s rejection of
claims 20, 29 and 37 under 35 U.S.C. § 103 as being unpatentable over Apelian.
Unexpected Results:
According to appellants (Brief, page 8), the claimed formulation “has
unexpected and advantageous results over Apelian's formulation.” Specifically,
appellants assert (id.), the viscosity and “syringeability” of its formulation is
superior to Apelian’s composition at both colder temperatures, namely 0°C and
warmer temperatures, namely at 25°C. In support of this assertion appellants
direct attention to the Mihalik Declarations, executed November 13, 2002 (Mihalik
I) and July 22, 2003 (Mihalik II). Id.
Of particular interest, we direct attention to paragraph 6 of Mihalik II. In
paragraph 6, Mihalik II provides a side-by-side comparison of an Apelian
formulation with a similar formulation within the scope of appellants’ claimed
invention. Specifically, we note that the only difference between the two
formulations is the inclusion of 5% polyethylene glycol in the Apelian formulation
as is required by Apelian. According to paragraph 6 of Mihalik II the Apelian
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