Appeal 2007-1154
Application 09/367,950
Carling teaches that the combination of formoterol and budesonide “permits
a twice daily dosing regime as a basic treatment of asthma. . .” (Carling 4:
20-21).
Appellant does not dispute that Carling teaches a composition within
the scope of claim 13 or that Carling teaches the administration of this
composition by inhalation twice a day to treat and prevent asthma symptoms
(Br. 14-15). Instead, Appellant contends that Carling differs from the
claimed invention, by not teaching the administration of the composition on
demand (Br. 17). According to Appellant,
a person having ordinary skill in the art of asthma therapy
would not have been motivated [by Carling] to instruct a patient
to inhale a composition comprising both budesonide and
formoterol more than twice daily, or to instruct a patient to
inhale the composition on demand, or as needed, such that the
therapy would be administered more than twice daily.
(Reply Br. 9.) However, as discussed above, Appellant admits that the term
“on demand” reads on the administration of the composition to a patient zero
times per day or twice a day. Therefore, Carling would appear to teach the
administration of the same composition, to the same patient population
(patients suffering from asthma symptoms), and in the same dosage (twice a
day) as is encompassed by Appellant’s interpretation of claim 13.
The question remains, however, whether Carling’s disclosure can be
reasonably interpreted to read on the “on demand” requirement in
Appellants’ claims. Therefore, the Examiner should make express findings
of how the phrase “instructing a patient to inhale the composition on
demand” is to be interpreted.
9
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: September 9, 2013