Appeal No. 2006-3234
Application No. 90/006,410
5. Polyvinylpyrrolidone is disclosed and claimed as a
“hydrocolloid forming retarding agent.” (‘106 at 3:20-33 and
e.g., claim 4).
6. According to the ‘106 disclosure “[t]he retarded tablets
according to the invention release metformin in a controlled
manner over a time period of 0.5-10 hours preferably over 4
hours.” (’106 at 5:31-33).
7. Claim 1 does not contain a limitation requiring “controlled
release” over a particular time frame.
8. The level of skill in the art is reflected by the prior art relied
upon by the examiner in rejecting the claims and the other prior
art of record.
Red List
9. The examiner rejected claims 1-4, 8-11, 20-23, 30-38, 40, 41,
45, 68, 69, 72, 73, 82-101, 104, and 105 under 35 USC §102(b)
as being anticipated by the Red List. (Answer at 4).
10. The Red List is a German publication and is said to be a list of
pharmaceutical products “on sale and in use in Europe.” (Brief
at 5).
11. The Red List discloses the product “Mediabet” as a tablet
containing “metformin-HCl” (metformin) as well as “auxiliary
ingredients” including “polyvidone [polyvinylpyrrolidone]”.
12. There is no evidence before us indicating that Mediabet was
ever on sale or in use in the United States.
13. Based on the Schneider declaration, we find that:
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