Appeal 2007-0526
Application 10/141,032
deposition, these results are particularly relevant to whether the claims of
group I are obvious (id. at 17-18).
We do not find Appellants’ argument persuasive. We note that
Example 5 shows a mean whole lung deposition of the claimed formulation
of 34 ± 5%, versus 5 ± 2% for nebulized formulation. However, we also
note that Edwards discloses that “[o]verall, greater than 35% (37 ± 2.1) of
aerosolized particles made with [the phospholipid] DPPC are considered
respirable . . .” (Edwards 34). Thus, it does not appear that the lung
deposition rate demonstrated in Example 5 is unexpected.
Moreover, “when unexpected results are used as evidence of
nonobviousness, the results must be shown to be unexpected compared with
the closest prior art.” In re Baxter-Travenol Labs., 952 F.2d 388, 392,
21 USPQ2d 1281, 1285 (Fed. Cir. 1991).
In our view, Appellants have not compared the claimed invention to
the closest prior art. Specifically, because the claims recite the use of
compositions having all of the physical properties of Edwards’ formulations,
Edwards is the closest prior art, not a nebulized composition. We therefore
agree with the Examiner that the asserted showing of unexpected results is
not sufficient to overcome the Examiner’s prima facie case of obviousness
with respect to claims 20 and 51.
We therefore affirm the rejection of claims 20 and 51. Claims 22-31,
33-39, 42, and 52-59 fall with claims 20 and 51.
SUMMARY
Because Edwards suggests that it would have been advantageous to
administer orally inhaled antibacterial agents such as tobramycin using a
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