Appeal 2007-0854
Application 10/179,463
administration,” and that “[n]either Patton nor Edwards disclose or make
obvious this feature.” (Br. 10.)
The Specification teaches at pages 30 and 31 that “[v]arious suitable
devices and methods of inhalation which can be used to administer particles
to a patient’s respiratory tract are known in the art,” and lists a number of
suitable prior art inhalers, as well as “others, such as those known to those
skilled in the art.” In addition, both Patton (for example, see the abstract)
and Edwards (see, for example, column 25, Example 12) teach the delivery
of particles of insulin to the lungs, but do not specifically teach the use of a
breath-actuated inhaler.
The panel cites Bacon (U.S. Patent No. 5,503,144, issued April 2,
1996) to demonstrate that breath actuated dry powder inhalers and their use
were known in the art, and thus, it would have been obvious to dispense the
formulation of claim 51 using any dry powder inhaler known to the ordinary
artisan, such as that taught by Bacon. The rapid release of insulin would be
an inherent result of the delivery of the formulation of claim 5 to lungs using
such breath-actuate, dry powder inhalers. Because our reasoning differs
from that of the Examiner, and in order to give Appellants an opportunity to
respond, we designate this affirmance as new grounds of rejection under 37
C.F.R. § 41.50(b).
CONCLUSION
In summary, we affirm the rejection of claims 5, 7-18, 26, 28-42, 51,
53-64, and 66-74. Because our reasoning as to claims 51, 53-64, and 66
differs from that of the Examiner, we designate the rejection as to those
claims only as new grounds of rejection.
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