Appeal No. 2006-2471 Page 6
Application No. 09/824,364
or that its “controlled release composition using special polymers” would result in a
pharmaceutical that reduced the interaction of statin with aspirin. Id., page 4, 7th
paragraph.
When patentability turns on the question of obviousness, the search for and
analysis of the prior art includes evidence relevant to the finding of whether there is a
teaching, motivation, or suggestion to select and combine the references relied on as
evidence of obviousness.” In re Sang Su Lee, 277 F.3d 1338, 1343, 61 USPQ2d 1430,
1433 (Fed. Cir. 2002). We focus on the Eisman and Shell patents since these formed
the core of the rejection.
Appellants did not contest that the use of a statin and aspirin in separate dosage
units would have been obvious to one of ordinary skill in the art. In the application, they
appeared to admit that the combination had been used in the prior art to treat patients.
The use of aspirin for reducing the risk of a myocardial infarction
and the use of statins for lowering cholesterol and preventing or treating
atherosclerosis and cardiovascular disease and cerebrovascular disease
are known in the art. In fact, it is not uncommon that patients having
elevated cholesterol levels who are at high risk for a myocardial infarction
take both a statin and aspirin.
Specification, page 1, lines 14-20; see also, Brief, page 4, paragraph 4.
Instead, Appellants urged that Eisman’s deficiency was its failure to disclose or
suggest a single dosage form containing both a statin and aspirin. Id., page 7. Thus,
the obviousness issue boils down to whether one of ordinary skill in the art would have
been motivated to have combined the two claimed ingredients into a single dosage form
that “reduces interaction between the statin and the aspirin.” As evidence that
motivation existed, the examiner pointed to disclosures in both Eisman and Shell.
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