Appeal No. 2006-2451 Page 6
Application No. 09/988,150
part of the common mucosal immune system. Id, page 455, column 2-page 456,
column 1. Many of the approaches utilized for oral administration are described by
Almeida as having been used successfully for nasal administration. For example,
cholera toxin was used as an adjuvant in oral and nasal delivery experiments. Id., page
459, column 2. Microspheres were also used with success in both the oral and nasal
environment to deliver proteins, including tetanus toxoid adsorbed to PLA microspheres.
Id., page 463, column 1. The use of Smith’s composition for nasal delivery would have
been considered by a person of ordinary skill in the art a repetition of the paradigm
described by Almeida in which compositions for oral administration are used for the
intranasal route for its disclosed advantages, including higher permeability (id., page
457) and increased patient compliance (id., page 463).
Appellants argue that Bomberger teaches away from the claimed subject matter
because “encapsulated microparticles are different and not generally applicable to any
situation as in the Smith delivery vehicles.” Reply Brief, page 4. See also Brief, page 5.
We do not agree. The Examiner relies on Bomberger for its general teaching that
microparticles can be utilized for intranasal administration, not for the microparticle
composition which is administered. Answer, pages 5 and 7. Smith is cited by the
Examiner for the particular microparticle composition which is claimed; Appellants do
not distinguish their claimed “microparticle having a protein and antibody adsorbed
thereon” from Smith’s composition.
We also agree with the Examiner that there would have been a reasonable
expectation of success. Answer, page 6. According to Almeida, “evidence that the
nasal administration of antigens can be a useful route of immunisation has been
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