Appeal No. 2006-2471 Page 9
Application No. 09/824,364
Appellants also contended that there was “no disclosure or suggestion … that the
polymer of Shell et al. could prevent or reduce interaction between aspirin and statin.”
Brief, page 9, lines 29-32. We do not find this argument persuasive. Reduction in the
interaction between statin and aspirin would be a consequence of following Shell’s
disclosure of formulating each drug with its own carrier. Our construction of claim 46
would cover this embodiment taught by Shell. Appellants have not articulated why the
claimed property requiring a reduced “interaction between the statin and aspirin” would
not naturally flow from Shell’s teachings.
In sum, Appellant’s arguments did not squarely address the examiner’s point that
Shell provides adequate motivation to have combined a statin and aspirin in a single
dosage form having the claimed features.
Appellants’ primary argument centered on the “incompatibility” of statin and
aspirin. This fact was apparently recognized prior to the application filing date:
However, use of both a statin and aspirin in a single dosage form could
result in drug interaction, which could result in physical and chemical
incompatibility, leading to a reduction in benefit derived from these drugs.
Accordingly, in the past, patients on both statin and aspirin have taken
these drugs in separate dosage forms.
Id., page 4.
At best, one skilled in the art reading Eisman et al., knowing that a statin
and aspirin unfavorably interact, absent the use of hindsight in view of
Appellants' disclosure, would employ the statin and aspirin in separate
dosage forms.
Id., page 7.
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