Appeal 2007-1082
Application 10/327,383
1 including density—can be controlled. On this record, for all we know,
2 anyone making a tablet using Singer’s azithromycin via the Curatolo
3 preferred wet granulating process would get results similar to those of
4 appellants. Even if not so, one skilled in the art making a granule to make
5 the Singer tablet would obtain a granule having a Carr’s Compression Index
6 of some value. On this record we have no idea what that Index number
7 might be.
8 Appellants, of course, maintain that the Carr’s Compression Index of
9 less that 34% is unexpected. We have already addressed why appellants’
10 proofs fall short of those required by law to establish the “unexpected”
11 nature of the results.
12 Appellants also maintain that the Examiner has engaged in hindsight.
13 We totally disagree and appellants have failed to explain why one skilled in
14 the art would not have used the Curatolo process choices to make the Singer
15 tablet. Binding precedent tells us that obviousness judgments are necessarily
16 based on hindsight, but so long as judgment takes into account only
17 knowledge known in the art, there is no hindsight error. In re McLaughlin,
18 443 F.2d 1392, 1395, 170 USPQ 209, 212 (CCPA 1971). The Examiner’s
19 rejections are based squarely on the prior art. There is no impermissible
20 hindsight in this case.
21 Appellants rely on Rouhi in an attempt to “catch” the Examiner
22 contradicting herself. The Examiner initially had held that the claimed
23 invention was based on a non-enabling description because, according to
24 appellants, the Examiner initially felt that there was some question whether
25 azithromycin (presumably Form F) would maintain its crystalline structure
19
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