Appeal No. 2007-0091
Application No. 09/765,491
hugely different amount of drug (1 microgram to 100 milligrams) as
compared to the amount in the claimed formulation.” (Br. 17.)
Claim 10 is directed to a method of administering an ointment
containing curcumin at a concentration of 0.5% to 5%. Aggarwal teaches a
method of administering curcumin in an amount ranging from 1 microgram
to 100 milligrams. Those skilled in the art would have found it obvious to
formulate a curcumin-containing composition in whatever concentration
would allow administration of the desired amount of curcumin in a
convenient dosage volume. For example, if a convenient dosage volume
was one milliliter, those skilled in the art would learn from Aggarwal that
the curcumin-containing composition should have a concentration of 1
µg/ml to 100 mg/ml, which correspond to concentrations of 0.0001% to 10%
weight to volume (where 1% = 1 g/ml).
Aggarwal would have suggested, to those skilled in the art, a range of
concentrations that encompasses the range recited in claim 10. “[W]here
there is a range disclosed in the prior art, and the claimed invention falls
within that range, there is a presumption of obviousness. But the
presumption will be rebutted if it can be shown: (1) That the prior art taught
away from the claimed invention; or (2) that there are new and unexpected
results relative to the prior art.” Iron Grip Barbell Co., Inc. v. York Barbell
Co., Inc., 392 F.3d 1317, 1322, 73 USPQ2d 1225, 1228 (Fed. Cir. 2004)
(citations omitted).
Here, Appellant has not shown that the prior art taught away from the
claimed range or that the claimed range produces unexpected results.
Therefore, he has not overcome the presumption of obviousness. We affirm
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