Appeal 2007-0318
Application 09/766,362
Appellant's argument that 'the delivery systems of
Illum contain absorption enhancers to increase bioavailability
and requires the formation of a gel' is not persuasive since
the instant 'comprising' claim language permits the presence
of additional components or additional steps aside from those
recited. . . .
. . . The prior art teaches the use of the same
ingredients (i.e., diketopiperazines, antihistamines), used for
the same field of endeavor (i.e.,mucosal applications) to treat
the same problems (i.e., retention of drug in nasal cavity) as
that desired by Applicants. Since the prior art recognizes and
explicitly teaches drug delivery systems based on the
formation of diketopiperazine microparticles and teaches the
microparticles to be in a suitable size range (between 0.1 and
10 microns -Steiner & between 10 and 100 microns -Illum),
the instant invention when taken as a whole, is rendered
prima facie obvious to one of ordinary skill in the art.
(Answer 10-14 (emphasis in original).)
We frame the § 103 issue with respect to claim 3 as follows: Would it
have been obvious to one of ordinary skill in the art to incorporate a
vasoconstrictor, antiinflammatory, analgesic, or chlorpheniramine as the
drug of claim 1 in view of Steiner’s and Illum’s teachings?
ADDITIONAL FINDINGS RELATING TO THE COMBINATION OF REFERENCES
28. Illum discloses a drug delivery system for nasal administration,
including microsphere particles containing an active drug, including
chlorpheniramine (col. 9, ll. 48-55), and having a “size between 10 and 100
microns.” (Illum, col. 6, ll. 13-15.) “Preferably, the particles are
administered in the form of a powder by spraying and have bioadhesive
properties.” (Col. 4, ll. 13-14.)
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