Appeal No. 2006-2471 Page 10
Application No. 09/824,364
Eisman et al. do not teach or suggest a single dosage form containing
both a statin and aspirin since it was known that the statin and aspirin
would interact to reduce efficacy of each.
Id., page 11.
Were it known that statin and aspirin were incompatible as alleged by Appellants,
Shell provides motivation to have utilized its controlled release dosage forms.
According to Shell, “drugs that are otherwise chemically incompatible when formulated
together can be delivered simultaneously via separate swellable particles contained in a
single dosage form.” Shell, column 10, lines 47-51. This is a clear case where the
“suggestion to combine references may flow from the nature of the problem. Kahn, 441
F.3d at 988, 78 USPQ2d at 1337. For this reason, we do not see how Appellants’
argument helps their case. Nonetheless, even if the co-stability problem had not been
recognized in the prior art, the advantages described by Shell for its dual drug
formulations (release each drug at its optimal rate and duration; improved compliance,
reduce side-effects, etc.) are sufficient to establish a case of prima facie obviousness.
On the record before us, we do not find that Appellants provided sufficient arguments to
rebut it. This rejection is affirmed. All pending claims fall together since separate
reasons for patentability were not provided.
Summary
The rejection of the claims over prior art is affirmed.
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