Appeal 2007-0526
Application 10/141,032
agree with the Examiner that one of ordinary skill would have considered
claims 20 and 51 obvious, for the reasons discussed supra.
Appellants further argue that Unger does not make up for Edwards’ or
Vaghefi’s deficiencies, and that “[w]hen the Unger reference is considered
as a whole, the Unger invention has little to do with the claimed method . . .”
(Br. 9). However, the Examiner cites Unger only to meet the limitations in
claims 33 and 59 requiring distearoylphosphatidylcholine (DSPC) in the
administered powder (Answer 3-4), not to meet the limitations of claims 20
and 51. Appellants’ arguments regarding Unger are therefore not relevant to
representative claims 20 and 51.
Appellants further argue that when the Group I claims are considered
as a whole, Edwards, Vaghefi, and Unger “do not suggest the advantages of
an inspiration delivery method [in which] the composition is formulated so
that delivery of the composition to a group of individuals at 60 LPM,
provides a relative standard deviation of interpatient variability in lung
deposition that is less than 40 percent” (Br. 10-11). Appellants urge that
“[t]here is no reasonable expectation of achieving this success from the
teachings or suggestions of the cited references,” and that only hindsight
viewing of Appellants’ experimental data “suggests the desirability of this
combination of type of particles, pharmaceutical, and delivery method” (id.
at 11).
We do not agree. Edwards’ compositions have the physical properties
recited in claim 20 and are prepared by spray-drying (see, e.g., Edwards 41-
42 (Example 9), 42-43 (Example 10)), the same method Appellants use to
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