Appeal 2007-1378
Application 10/327,459
1 succeed. The level of skill in the art, as revealed by this record, shows that
2 one skilled in the art manifestly would be able to do so. To the extent that
3 appellants limit the claims to blends which are “operable” is not surprising
4 and reflects, we believe, nothing more than a realization of what one having
5 ordinary skill in the art would do. Once a person sets out to follow
6 Tenengauzer to make a tablet, one skilled in the art would be expected to use
7 proper techniques, as shown by the level of skill on the record, to succeed—
8 not to fail.
9 Appellants argue that Tenengauzer described the use of an anti-
10 oxidant to prevent chemical degradation of azithromycin. Appeal Brief,
11 page 13.
12 Appellants’ argument is foreclosed by the Examiner’s observation that
13 appellants use the transition language “comprising.” Examiner’s Answer,
14 page 5. See Ex parte Davis, 80 USPQ 448, 450 (Bd. App. 1948).
15
16 Examiner’s § 103 rejection based on Singer and Curatolo
17 The Examiner found that a person having ordinary skill in the art
18 seeking to make the tablets of Singer would have found it obvious to use dry
19 granulation or direct compression as described by Curatolo.
20 The evidence supports the Examiner’s finding.
21 As the Examiner noted, Singer describes tablets made from
22 azithromycin ethanolate.
23 To be sure, Singer does not describe precisely how one would go
24 about making a tablet from its azithromycin—nor need Singer do so given
25 that the prior art already describes how a tablet is to be made. Cf. Webster
14
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