Appeal 2007-1082
Application 10/327,383
1 1998) (we decline to search the record in the first instance to determine
2 whether there is evidence which might support a holding of obviousness)
3 and the Federal Circuit’s observation in Rexnord Corp. v. Laitram Corp.,
4 274 F.3d 1336, 1343, 60 USPQ2d 1851, 1855 (Fed. Cir. 2001) (the parties
5 have the responsibility to provide all relevant arguments and point out with
6 specificity the relevant support of their arguments).
7 With respect to the claims which recite a Carr’s Compression Index of
8 less that 34%, appellants’ argument is not convincing for a variety of
9 reasons.
10 First, based on the evidence called to our attention in the Appeal
11 Brief, at best appellants have established that they can obtain a Carr’s
12 Compression Index of less than 34% only for azithromycin Form 4, which is
13 azithromycin monohydrate hemi-ethanol solvate. Specification, page 7:1-3.
14 Except for claims 8 and 17-22, the remaining claims cover a process of
15 using and compositions made from another azithromycin.
16 Second, we have not been told where the record would support
17 findings to demonstrate that the 34% is an unexpected result. Merely
18 because appellants achieve a Carr’s Compression Index of less than 34%
19 does not per se establish an unexpected result—at best a Carr’s Compression
20 Index of 34% is a “different” result. In any event, we cannot overlook the
21 fact that we are told by Curatolo that wet granulation is the method of choice
22 for making azithromycin tablets and that one skilled in the art looking for
23 density properties would take into account the choice of processing. When
24 the objective evidence of non-obviousness is balanced against the prior art
25 and the objective evidence of obviousness which appears in this record, we
16
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