Appeal No. 2006-3234
Application No. 90/006,410
coating” so that the residual content of the actual Mediabet tablet would not
fall within the claimed range of 0.5-3% by weight. (Brief at 5). We are not
persuaded by the unsupported arguments of Appellant and find these
arguments insufficient to rebut the examiner’s showing of inherency.
Moreover, appellant’s argument is inconsistent with its own specification
which reports adjusting residual moisture content to within the claimed
range prior to tabletting. (See, e.g., ‘106 at 5:13-19 and example 1 at 6:28-
32).
We note that our own review of the Schneider declaration in
combination with the Red List, shows a slight difference between the
formulation of Mediabet reported by Schneider and that reported by the Red
List. Appellant does not argue that the differences between the reported
compositions of Mediabet would affect residual moisture content.
Given the close similarity between the formulation of Mediabet
reported by Schneider and that reported by the Red List, we find that the
Schneider declaration provided the examiner with a sufficient basis to
support her determination of inherency. Thus, we do not find that the slight
difference we found negatively affects the examiner’s showing of inherency.
The examiner’s rejection of 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) is AFFIRMED.
B. 35 USC 103(a)
The examiner relies upon Abdallah in rejecting all the claims under 35
USC § 103(a). Abdallah teaches a tablet containing a mixture of metformin
and methyl cellulose. Abdallah does not disclose the residual moisture
content of the mixture. Appellant concedes that the methyl cellulose found
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