Appeal 2007-0318
Application 09/766,362
claim 1 would have been obvious to the skilled artisan, absent a showing of
criticality, or unexpected results, due to the claimed average particle size
range. (See supra pp. 10-11 (“DISCUSSION OF STEINER
REJECTION”).)
Additionally we conclude incorporating the drugs recited in claim 3
would have been obvious in view of the teachings of Steiner and Illum and
also Appellants’ own admissions in their Specification. (FFs 28 & 32.)
While not necessary to sustain all the rejections, the particle size range
disclosed in Illum, between 10 and 100 microns, encompasses (or at least
overlaps) Appellants’ claimed range. Thus, Illum provides additional
evidence Appellants’ claimed range would have been obvious to the skilled
artisan, absent evidence rebutting the prima facie case of obviousness
created by the range overlap. (See FFs 14-22, 28, & 33 and the discussion
supra pp. 10-11.)
Claim 20
With respect to claim 20, Appellants argue “neither Steiner nor Illum
disclose forming the microparticles by spray drying . . . .” (App. Br. 16.)
We find “[s]pray drying methods . . . are well known in the art,” as
Appellants admit. (Spec. 3.) Thus, we further conclude claim 20 would
have been obvious to one of ordinary skill in the art based on Steiner and
Illum, in view of Appellants’ admission regarding spray drying methods.
CONCLUSION
In summary, we affirm the Examiner’s § 103(a) rejections of claims 1,
7, 14, 3, and 20 over the cited prior art. Pursuant to 37 C.F.R.
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