Appeal 2007-1378
Application 10/327,459
1 rejection. What appellants’ argument amounts to is a “divide and conquer”
2 approach—since Singer does not show it all, then the combination of Singer
3 and Curatolo is “no good”. Sometime ago, however, binding precedent
4 made clear that an obviousness rejection cannot be overcome by attacking
5 references individually—which is precisely what appellants are doing. In re
6 Young, 403 F.2d 754, 757, 159 USPQ 725, 728 (CCPA 1968).
7 Appellants go on to say that Singer does not describe any
8 azithromycin having a Carr’s Compression Index of less that 34%. Appeal
9 Brief, page 16. Appellants are correct that there is no explicit description of
10 Carr’s Compression Index in Singer. However, making a tablet is described
11 by Singer and any one skilled in the art would know from Curatolo precisely
12 how to make the tablet. Not only that, but based on Curatolo, any one
13 skilled in the art would know that through process choices, properties—
14 including density—can be controlled. On this record, for all we know,
15 anyone successfully making a tablet using Singer’s azithromycin via the
16 Curatolo dry granulation or direct compression process would get results
17 similar to those of appellants. Even if not so, one skilled in the art making a
18 granule to make the Singer tablet would obtain a granule having a Carr’s
19 Compression Index of some value. On this record we have no idea what that
20 Index number might be.
21 Appellants, of course, maintain that the Carr’s Compression Index of
22 less that 34% is unexpected. We have already addressed why appellants’
23 proofs fall short of those required by law to establish the “unexpected”
24 nature of the results.
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