Appeal 2007-1378
Application 10/327,459
1 We have not been told where the record would support findings to
2 demonstrate that the 34% is an unexpected result. Merely because
3 appellants achieve a Carr’s Compression Index of less than 34% does not
4 per se establish an unexpected result—at best a Carr’s Compression Index of
5 34% is a “different” result. In any event, we cannot overlook the fact that
6 we are told by Curatolo that granulation and direct compression are suitable
7 methods of choice for making azithromycin tablets and that one skilled in
8 the art looking for density properties would take into account the choice of
9 processing. When the objective evidence of non-obviousness is balanced
10 against the prior art and the objective evidence of obviousness which
11 appears in this record, we have no trouble declining to credit appellants’
12 “showing” of non-obviousness.
13 The Examiner made a point in the Examiner’s Answer to the effect
14 that according to the specification (page 13:30 to page 14:1), appellants
15 indicate that formulations with a Carr’s Compression Index greater than
16 34% “resulted in poor flow and inability to form suitable tablets on an
17 F-press.” Examiner’s Answer, page 5.
18 In effect, what the Examiner found was that a blend has to be
19 formulated in such a manner as to be suitable for making tablets.
20 Apparently that means a Carr’s Compression Index of less than 34%.
21 What appellants have determined is precisely what we learn from
22 Curatolo—choice of processing conditions depends on the properties of the
23 drug and chose excipients. Col. 7:52-64.
24 A person skilled in the art, attempting to make a dry blend, from the
25 ingredients set out in Tenengauzer would use ingredients and amounts to
13
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