Appeal 2007-1817
Application 10/045,510
With respect to degree of crystallinity, there is no evidence Jerussi’s
solids are not crystalline, or at least partially crystalline. Jerussi describes all
their compounds as “solids” regardless of the nature of the compound or
degree of purity. (See, e.g., (+)-Venlafaxine (>99.95% pure) (Jerussi, at 24);
(+)-Venlafaxine-HCl Salt (>99.99% pure) (id.).) In any case, the skilled
artisan would have reasonably expected to obtain on further purification not
only a colorless compound but also a crystalline one.
While Appellants urge that the crystals are preferred over gums and
the yellow gum of Jerussi is unstable (Br. 12) this argument ignores the
reference’s teaching that the gum is converted to a pale yellow solid and also
that the optically active, pure isomer is colorless. It also ignores Jerussi's
further suggestion of using hexane to purify a product closely related to
venlafaxine, again to obtain a colorless solid (Jerussi 22: 25-29).
Appellants further urge that the facts of the present case are similar to
those presented in In re Cofer, 354 F.2d 664 (CCPA 1966). (Br. 11-12.)
However, the facts in Cofer differ from those presented. In Cofer, the prior
art described the compound as a viscous liquid and there was nothing in the
prior art to suggest that a crystalline form of the epoxy propane compound
would exist. The court held in Cofer there was no explanation why it should
be found from the references or from common knowledge that a person
skilled in the art would regard free flowing crystals to be obvious. Cofer,
354 F.2d at 271. In the present case, the examiner has set forth reasons,
from the common knowledge of one of ordinary skill in the art (Jerussi) of
purification of venlafaxine, why it would have been obvious that purer
venlfaxine crystals could readily be obtained.
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