Appeal 2007-2516
Application 10/302,553
particles are described in Alliance, including a teaching of “a bulk density of
less than about 0.5 gm/cm3” (Alliance, p. 9, ll. 24-25; Findings of Fact 15;
Answer 5) and “a mass mean aerodynamic diameter from about 0.5-10 µm”
(Alliance, p. 29, ll. 3-5; Finding of Facts 16; Answer 5). We find the
Examiner’s conclusion reasonable that it would have been obvious to those
of ordinary skill to have administered surfactant as particles for the
advantages described by Alliance (Answer 4-5). Appellants do not identify
a flaw in this reasoning.
Appellants argue that Alliance does not “teach that particles should
have a gel to liquid crystal phrase transition temperature greater than about
40ºC as claimed in claim 1” (Amended Br. 13). We disagree. Alliance
describes using surfactants having “a gel to liquid crystal phase transition
greater than about 40ºC” (Alliance, p. 11, ll. 3-4; Findings of Fact 14).
Consequently, it is reasonable to presume that particles comprising the
surfactant would also have a phase transition temperature greater than about
40ºC.
“decreasing an oxygen index of a patient by at least 20%”
The method of claim 1 comprises a step of “decreasing an oxygen
index of a patient by at least 20%.” The Examiner contends that Hafner
describes compositions which contain dipalmitoylphosphatidylcholine
(Hafner ‘970, cols. 4-5, Examples 1-5; Findings of Fact 6; Answer 5) for
treating ARDS and therefore “one of ordinary skill in the art would [have]
expect[ed] [a] similar decrease in [the] oxygen index” (Answer 5). The
Examiner also asserts that
although Hafner does not specifically state decrease of oxygen
index by at least 20 %, on col. 6, lines 23-40 Hafner (970)
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