Appeal 2007-2371
Application 10/426,654
and then homogenizing the lipid/aqueous mixture with a Microlab 70 Gaulin
Homogenizer (id. at col. 17, ll. 45-61). “Then . . . a 1% Carbopol
[(polyacrylic acid)] solution was added and stirred for 20 min to confer
mucoadhesive properties to the emulsome preparation” (id. at col. 17, l. 66
through col. 18, l. 1).
As discussed above, because the Specification discloses that lecithin
and acrylic polymers have a physical and/or chemical affinity that results in
formation of a matrix when those ingredients are combined, claim 1
encompasses the structure that results from combining lecithin and an
acrylic polymer. We therefore agree with the Examiner that Anselem’s
disclosure of preparing a mixture of lecithin and Carbopol inherently meets
claim 1’s limitation that the ingredients be combined to form a matrix
structure.
In Example 18, Anselem discloses intranasally administering
antigen-containing preparations made according to Example 4 to mice
(Anselem, col. 25, ll. 20-43). Anselem therefore discloses both the
formulating step and the administering step recited in claim 1. We agree
that the Examiner has made a prima facie case of anticipation with respect to
claim 1. “[A]fter the PTO establishes a prima facie case of anticipation
based on inherency, the burden shifts to appellant to ‘prove that the subject
matter shown to be in the prior art does not possess the characteristic relied
on.’” In re King, 801 F.2d 1324, 1327 (Fed. Cir. 1986) (quoting In re
Swinehart, 439 F.2d 210, 212-13 (CCPA 1971)).
Appellant argues that “formulation of an adjuvant having a matrix or
net-like structure comprised of lecithin and acrylic polymer as recited in the
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