Appeal No. 2007-0307
Application No. 09733,640
5. Claims 1, 3, 5, 34, 38, 51, and 58-72 stand rejected under 35 U.S.C. § 103(b)
over Shukla in view of Bateman.
Shukla is discussed above. The examiner acknowledges that Shukla does
not exemplify the use of a polymer blend specifically comprising an amorphous
polymer and a crystalline polymer. Answer, page 9. The examiner further relies
on Bateman which teaches that partially crystalline polymers provide for an
immediate release of active agent whereas amorphous polymers provide for
prolonged release. Answer, page 10. Bateman further teaches blending crystalline
and amorphous polymers in various ratios can provide a range of active release
rates. Id.
Appellants contend that there is no motivation to combine Shukla with
Bateman, because the disclosure of Bateman is limited to solid tablet formulations.
Brief, page 15. Appellants argue that there is no reasonable expectation of success
that the composition of Bateman for release of an active agent in the digestive tract
would work as a controlled release agent if implanted into a fixed position in the
body. Brief, pages 15-16.
We agree with appellants that there is "no disclosure in . . . Bateman that
would provide one of ordinary skill in the art with a reasonable expectation of
success in the combination of a viscous vehicle for body cavities with a tablet for
oral administration." Brief, page 16. Appellants further argue that "the solid tablet
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