Appeal No. 2006-1304 Page 13
Application No. 10/214,058
Although Appellant did not separately argue these rejections, we must still
consider whether the examiner has made out a prima facie case of obviousness. See
In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993): “[T]he
examiner bears the initial burden of presenting a prima facie case of obviousness. Only
if that burden is met, does the burden of going forward with evidence or argument shift
to the applicant.”); In re McDaniel, 293 F.3d 1379, 1384, 63 USPQ2d 1462, 1465-66
(Fed. Cir. 2002) (An applicant has a “right under the statute to have each contested
ground of rejection by an examiner reviewed and measured against the scope of at
least one claim within the group of claims subject to that ground of rejection.”).
Claim 2 is directed to the “composition of claim 1 comprising amlodipine
besylate.” Davison teaches that “the besylate salt of amlodipine shows a unique
combination of good solubility, good stability, non-hygroscopicity and good
processability which makes it outstandingly suitable for the preparation of
pharmaceutical formulations of amlodipine.” Column 4, lines 21-26. We agree with the
examiner that Davison’s teaching, in combination with those of Roth, Lazar, and
Jukema, would have rendered the composition of claim 2 prima facie obvious. Claims
121-123, 126, 127, 142, 143, and 145-147 fall with claim 2.
Claim 144 depends on claims 1 and 139. As a result of those dependencies,
claim 144 is directed to a composition comprising amlodipine and atorvastatin (claim 1),
in controlled release form (claim 144), in the form of an aqueous suspension and further
comprising a sweetener, a flavoring agent, a coloring agent, an emulsifier, and a
suspending agent (claim 139). The examiner cited Wright to meet the further limitations
of claim 144, asserting that Wright teaches a controlled release dosage formulation of
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