Appeal 2007-1073
Application 10/308,176
The Examiner relies on Chen for the disclosure of
clear oil containing pharmaceutical compositions and methods
for improving solubilization and delivery of therapeutic agents
including calcitriol (see col. 29, l. 20), wherein tocopherol
PEG-1000 succinate is used therein as a preferred surfactant
(see co1. 25, ll. 25-38). Miglyol 812 (also known as glyceryl
tricaprylatelcaprate, see col. 6, l. 53), [is used] as a preferred
carrier for the compositions of Chen et al. (see co1.7, ll. 52-66).
(Answer 8.)
The Examiner concludes:
One having ordinary skill in the art at the time the
invention was made would have been motivated to employ
tocopherol PEG-1000 succinate in lieu of α-tocopherol or
polyethylene glycol (PEG) in the gelatin capsule composition
of Barbier et al, since tocopherol PEG-1000 succinate (vitamin
E TPGS) is known to be used as a preferred surfactant for
improving solubilizaton and delivery of therapeutic agents
including calcitriol according to Chen et al.
(Answer 9.)
Appellants contend that the Examiner has failed to establish a
prima facie case of obviousness. (Br. 19.) In particular, Appellants
argue that there is no motivation to combine Barbier with Chen. (Br.
22.)
We agree with Appellants that the Examiner has failed to
establish a prima facie case of obviousness on the evidence before us.
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