Appeal 2007-1154
Application 09/367,950
the symptoms of an acute attack begin, or early in the
development of an acute attack when the symptoms are still
relatively minor but are felt by the patient. When a patient
knows in advance that he/she is about to encounter asthma-
triggering conditions such as those mentioned in the
[S]pecification, he/she can take preventative action by using the
formoterol/budesonide inhaler in accordance with the claimed
methods, i.e., “on demand” or “as needed.”
(Br. 5.)
We find that Appellant has the better argument and the rejection is
reversed.
Obviousness:
Claims 13-15, 17, 18, 20-36, 38, 42, and 43 stand rejected under 35
U.S.C. § 103(a) as unpatentable over Carling; and Claims 16 and 19 stand
rejected under 35 U.S.C. § 103(a) as unpatentable over the combination of
Carling, Aberg, and Ryrfeldt. Claims 16 and 19 depend from claim 13,
accordingly, to simplify our discussion, we will focus on representative
claim 13.
Claim 13 is drawn to a method of prevention and treatment of asthma
symptoms. The method comprises the single step of instructing a patient in
need thereof to inhale an effective amount of a composition on demand, as
determined by the patient based on the patient’s symptoms, as a treatment
and a preventive measure, when the patient experiences an increase in
asthma symptoms.
In addition, claim 13 defines the composition as comprising in
admixture:
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