Appeal No. 2006-2471 Page 8
Application No. 09/824,364
two together in a single unit, as done for other cardiovascular drugs, and would have
been motivated to have done so with these. A suggestion, teaching, or motivation to
combine the relevant prior art teachings does not have to be found explicitly in the prior
art, but may be implicit from the prior art as a whole. In re Kahn, 441 F.3d 977, 987-88,
78 USPQ2d 1329, 1336 (Fed. Cir. 2006).
In addition to combining the two drugs in the same unit, Shell also explains why
each drug would be separately mixed with its own carrier.
Different drugs have different biological half-lives which determine
their required frequency of administration (once daily, four times daily,
etc.). Thus, when two or more drugs are co-administered in one
conventional medication unit, an unfavorable compromise is often
required, resulting in an underdose of one drug and an overdose of the
other. One of the advantages of the dosage forms of the present
invention is that they can be used to deliver multiple drugs without
requiring such compromises. For example, in an alternative embodiment,
a plurality of drug-containing, spherical, spheroidal- or cylindrical-shaped
particles are provided, some of the particles containing a first
drug/polymer composition designed to release the first drug at its ideal
rate and duration (dose), while other particles contain a second
drug/polymer composition designed to release the second drug at its ideal
rate and duration.
Column 9, lines 48-63.
Appellants did not explain why the aforementioned disclosures in Eisman and
Shell were inadequate to provide motivation to establish prima facie obviousness of the
claimed subject matter. Appellants stated that Shell was “totally different” from the
claimed subject matter because it was “not concerned with using a statin and aspirin in
the same dosage form.” Brief, page 8, 4th paragraph. However, the examiner did not
rely on Shell for teaching the statin/aspirin combination.
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