Appeal 2007-1154
Application 09/367,950
(Br. 5, emphasis added.) We emphasis Appellant’s use of the word “can,”
because while claim 13 requires that a patient be instructed to take the
composition on demand, the patient may elect to take the composition for
maintenance therapy (e.g., twice a day), twice a day only during the allergy
season when asthma symptoms flair up, every five minutes, more often, or
not at all.
In this regard, it may be that inhalation “on demand” reads on a range
of circumstances wherein patients will never inhale the composition (e.g.,
the lower limit of 0 inhalations), or will inhale the composition an undefined
number of times (e.g., an undefined upper limit). It would appear that those
patients who will inhale the composition conventionally, e.g., two-times per
day to prevent and treat asthma symptoms, would be included in this range
(see infra).
This interpretation would appear to be consistent with the manner in
which Appellant’s representative interpreted claim 13 at the May 17, 2007
Oral Hearing. Specifically, Appellant’s representative stated that claim 13
“specifies just the on-demand part, which could mean zero times a day . . .
[or] [i]t could end up being no more than two times a day” (Oral Hearing
Transcript 4: 3-8.).
As the Examiner explains (Answer 7), Carling teaches a composition
comprising formoterol and budesonide, the first and second active
ingredients of Appellant’s composition (Carling 4: 23-28). Carling’s
composition is “for administration by inhalation in the treatment of
respiratory disorder . . .” (Carling 4: 30-34). According to Carling, “[t]he
intended dose regimen is a twice daily administration” (Carling 6: 22-23).
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