Appeal 2007-0318
Application 09/766,362
improve upon what is already generally known provides the motivation to
determine where in a disclosed set of percentage ranges is the optimum
combination of percentages.” Peterson, 315 F.3d at 1330, 65 USPQ2d at
1382. “The law is replete with cases in which the difference between the
claimed invention and the prior art is some range or other variable within the
claims. . . . These cases have consistently held that in such a situation, the
applicant must show that the particular range is critical, generally by
showing that the claimed range achieves unexpected results relative to the
prior art range.” Woodruff, 919 F.2d at 1578, 16 USPQ2d at 1936 (emphasis
in original). In this case, Appellants have not shown their claimed range is
“critical,” i.e., produces unexpected results. (FFs 14-22.)
Based on our findings and those of the Examiner, we conclude the
subject matter of claims 1 and 14 would have been obvious to the skilled
artisan in view of Steiner’s teachings and the skill in the art.
Claim 7
With respect to claim 7, Appellants additionally contend “Steiner does
not disclose or suggest a device for delivering a measured dose of a drug to
the nasal mucosa.” (App. Br. 11.) The Examiner found otherwise. (See
Answer 3-4 & 10 (discussing Steiner’s application to the nasal mucosa)).
Given these conflicting views, we define the claim 7 issue: Would the use
of a “drug delivery device for delivering a measured dose of the drug to the
nasal mucosa” have been obvious to the skilled artisan, based on Steiner’s
teachings regarding administering microparticles that bind to mucosal
membranes for imaging of the nasal tract?
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