Appeal 2007-0318
Application 09/766,362
ADDITIONAL FINDINGS OF FACT RELATING TO CLAIM 7
23. Steiner discloses or suggests all the limitations of claim 7,
including nasal administration of an imaging agent (FFs 4-9), but does not
expressly disclose any device for nasal administration.
24. Nasal administration of drugs, including dry powder forms and
appropriate devices for doing so, was known in the art. (See, e.g., Illum, col.
1, l. 22 to col. 4, l. 2 (describing the prior art).)
25. Appellants’ single, general disclosure in the Specification of
methods of nasal administration supports the finding that such methods were
well known in the art. (See Spec. 13, Example 1 (“The dry powder
formulation can be administered by the use of a nasal insufflator . . .
preferably . . . provided with means to ensure administration of a
substantially fixed amount of the composition.”).)
26. One skilled in the art would have known the necessity of
“delivering a measured dose” of a drug nasally and would have known how
to do so. (FFs 24-25.)
27. Thus, given Steiner’s express disclosure of administering an
imaging agent to the nasal mucosa, the skilled artisan would have known to
use an appropriate “delivery device for delivering a measured dose of the
drug to the nasal mucosa.” (FFs 23-26.)
Discussion of the Patentability of Claim 7
Based on our findings and those of the Examiner, we conclude the
subject matter of claim 7, including the delivery device, would have been
obvious to the skilled artisan in view of Steiner’s teachings and the skill in
the art, absent evidence establishing the criticality of the claimed average
particle size range. (FFs 4-9, 24-27.)
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