Appeal 2007-1082
Application 10/327,383
1 On the basis of the evidence before us, we have no difficulty
2 concluding that appellants have done nothing more than make granulated
3 azithromycin using known techniques to get exactly what one skilled in the
4 art would expect.
5 Appellants disagree maintaining that the art must, in appellants’
6 words, have “some suggestion or motivation” to combine the teachings of
7 Singer and Curatolo. Appeal Brief, page 17.
8 We have no trouble finding that the teachings of Singer and Curatolo
9 can be combined—the Curatolo glove fits right on the Singer hand.
10 Singer is said to fail to describe all the limitations of the claims. The
11 argument is a side show apart from the main event. If Singer described all
12 the limitations, then the Examiner would have made an anticipation
13 rejection. What appellants’ argument amounts to is a “divide and conquer”
14 approach—since Singer does not show it all, then the combination of Singer
15 and Curatolo is “no good”. Sometime ago, however, binding precedent
16 made clear that an obviousness rejection cannot be overcome by attacking
17 references individually—which is precisely what appellants are doing. In re
18 Young, 403 F.2d 754, 757, 159 USPQ 725, 728 (CCPA 1968).
19 Appellants go on to say that Singer does not describe any
20 azithromycin having a Carr’s Compression Index of less that 34%. Appeal
21 Brief, page 18. Appellants are correct that there is no explicit description of
22 a Carr’s Compression Index in Singer. However, making a tablet is
23 described by Singer and Curatolo tells anyone skilled in the art precisely
24 how to make the tablet. Not only that, but based on Curatolo, any one
25 skilled in the art would know that through process choices, properties—
18
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