Appeal 2007-1082
Application 10/327,383
1 (CCPA 1977). See also In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655,
2 1657-1658 (Fed. Cir. 1990).
3
4 F. Discussion
5 Examiner’s § 103 rejection based on Tenengauzer
6 The findings support the Examiner’s holding of obviousness.
7 The process described by Tenengauzer for making Formulation 1
8 from Preparation 7 facially appears to involve all of the steps set out in
9 appellants’ method claim 1: (1) mixing an azithromycin with a granulating
10 amount of a non-aqueous granulating liquid to form wet granules and (2)
11 drying the wet granules. See Steps 2 to 5 mentioned in our findings.
12 One azithromycin described as useful by Tenengauzer is azithromycin
13 ethanolate monohydrate.
14 We, like the Examiner, find it difficult to distinguish the product made
15 by the process described by Tenengauzer from that claimed by appellants.
16 In re Best, supra.
17 Appellants’ principal argument seems to be that Tenengauzer does not
18 describe granules with a Carr’s Compression Index of less that 34%. Appeal
19 Brief, page 14 (answering the Examiner’s § 102 rejection) and page 15
20 (answering the Examiner’s § 103 rejection).
21 A review of claims 1, 3-4, 7-11 and 13-14 will reveal that no Carr’s
22 Compression Index is recited. Accordingly, appellants’ argument cannot
23 control the obviousness and patentability determination of those claims.
14
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