Appeal No. 2006-3223 Page 7
Application No. 10/663,352
that the matrix contains at least one layer, where the layer comprises three recited
components blended together to form a single layer.
Anticipation
Claims 45-52 stand rejected under 35 U.S.C. § 102(b) as anticipated by
Barclay.3
The Examiner rejects the claims as anticipated by Barclay, which describes an
osmotic delivery device with an outer layer made from a water-insoluble polymer and an
inner layer comprising a water-soluble polymer. Answer, page 4. The device contains
a water-soluble drug which is yellow in color and which leaches from the delivery
device. Id. There is no dispute between the Examiner and Appellants about what
Barclay teaches. The Examiner applies Barclay to the claims because, under his claim
construction, claim 45 covers a device in which the water-insoluble polymer, water-
soluble polymer, and colorant are arranged in different layers, rather than being limited
to a single layer containing a blend of all three components. The former structure is
described by Barclay, but the latter structure is not. Having concluded that the
Examiner’s claim construction is not proper, we are led to the conclusion that Barclay’s
device does not anticipate the claims. We reach this conclusion because, as Appellant
argues, Barclay does not teach a device containing the recited water-insoluble polymer,
water-soluble polymer, and water-leachable colorant in a single layer. Brief, page 11.
For the forgoing reasons, we find that the Examiner has failed to establish a case
of prima facie obviousness. This rejection is reversed.
3 Barclay et al. (Barclay), U.S. Pat. No. 5,021,053, issued Jun. 4, 1991
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