Appeal 2007-2516
Application 10/302,553
Rejection under § 103 over Hafner ‘223 or Hafner ‘970 combined with
Alliance
Claims 1-23 stand rejected under 35 U.S.C. § 103(a) as obvious over
Hafner ‘223 or Hafner ‘970 in combination with Alliance (Answer 4).
Because the Examiner relies on Hafner ‘223 and ‘970 for the same
teachings, we only refer to the disclosure in Hafner ‘970.
The Examiner states that Hafner ‘970 teaches administering a lung
surfactant powder to treat ARDS, but does not disclose that the powder has
particles possessing the properties which are recited in the claims (Answer
4). However, the Examiner asserts that Alliance teaches surfactant
containing particles for aerosol administration to the lungs having the same
characteristics which are claimed (Answer 4-5). The Examiner concludes
that “[t]o prepare the particles of Hafner having the claimed bulk density and
mass median diameter values would have been obvious to one of ordinary
skill in the art since [Alliance] teaches the advantages of particles having
these properties while administering compositions to the respiratory tract of
a patient” (Answer 5).
We agree with the Examiner that the combination of Hafner ‘970 with
Alliance is sufficient to establish prima facie obviousness of the claimed
subject matter, shifting the burden to Appellants to provide rebuttal evidence
or arguments.
Appellants admit in their Specification that the “[p]articularly
preferred embodiments of the invention incorporate spray dried, hollow and
porous particulate compositions as disclosed in WO 99/16419 [Alliance]”
(Specification 7: 17-18; Findings of Fact 10). Consistent with this
admission, the Examiner found that all the recited properties of the claimed
7
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: September 9, 2013