Appeal 2007-1348
Application 10/650,253
1 Obviousness based on Singer
2 Singer, like Bright, does not describe or render obvious substantially
3 pure azithromycin Form F.
4 Appellants and the Examiner agree that Curatolo likewise does not
5 describe substantially pure azithromycin Form F.
6 Based on Li v. Singer, what surfaces in this case is that an essential
7 element of appellants’ mixture does not appear in the prior art relied upon by
8 the Examiner.
9 Accordingly, the scope and content of the prior art is such that the
10 prior art, as a whole, cannot render obvious the subject matter of claim 125.
11
12 Additional observations
13 1. In fairness to the Examiner, we wish to point out that the Examiner’s
14 Answer was entered on 31 August 2006, but our decision in Li v. Singer was
15 not entered until 08 November 2006.
16 When the Examiner’s Answer was written in August, the Examiner
17 could not have known what we might hold in November in an inter partes
18 case involving Li (one appellant here) and Singer (the reference relied upon
19 by the Examiner here).
20 In Li v. Singer, Li was able to sustain its burden of showing that
21 Singer did not anticipate or render obvious subject matter which is
22 somewhat broader than the subject matter of claim 125.
23 Had the Examiner been aware of Li v. Singer, we are confident the
24 rejection based on obviousness would not have been maintained.
10
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: September 9, 2013