Appeal 2007-2516
Application 10/302,553
surfactants to the lung are inefficient (Specification 1-3). The instant
application describes methods of administering lung surfactants by
inhalation using dry powder compositions (Specification 3: 20-25).
Claims 1-23 are pending and rejected (Amended Br. 4). The
Examiner relies on the following prior art as evidence of unpatentability:
Clements US 5,110,806 May 5, 1992
Alliance WO 99/16410 Apr. 8, 1999
Hafner ‘970 US 6,436,970 B1 Aug. 20, 2002
Hafner ‘223 US 6,858,223 B2 Feb. 22, 2005
The following rejections are on review in this appeal:
1) Claims 1-23 stand rejected under 35 U.S.C § 112, second paragraph
as indefinite (Answer 3).
2) Claims 1-23 stand rejected under 35 U.S.C § 103(a) as obvious
over Hafner ‘970 or Hafner ‘223 in combination with Alliance (Answer 4).
3) Claims 1-23 stand rejected under 35 U.S.C § 103(a) as obvious
over Alliance, alone, or in combination with Clements (Answer 7).
For each prior art rejection, Appellants separately argue the following
groups of claims: claims 1-15, 16-18, and 19-20. Within each grouping, the
claims stand or fall together. We select claims 1, 16, and 19 as
representative. They read as follows:
1. A method for providing lung surfactant therapy to a patient
in need thereof, the method comprising:
decreasing an oxygen index of a patient by at least 20%
by administering a dry powder composition by inhalation to the
respiratory tract of a patient, the dry powder composition
comprising lung surfactant and particles, the particles
comprising phospholipid, and the particles having a gel to
liquid crystal phase transition temperature greater than about
2
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