Appeal 2007-2516
Application 10/302,553
Claims 19-20
Claim 19 differs from claim 1 in reciting that the oxygen index of a
patient is decreased by “at least 40%” by inhaling the claimed composition
“in a plurality of inhalations over a 30 minute period.” The claim also
recites that particles comprise calcium.
For the reasons discussed above for the limitation in claim 1 of
“decreasing an oxygen index of a patient by at least 20%,” we conclude that
it would have been obvious to have optimized the administration conditions
to achieve the recited degree of oxygen index reduction. We have
considered Appellants’ arguments (Amended Br. 15-16), but they are no
different than the arguments provided in support of the patentability of claim
1. We do not find these arguments any more persuasive for claim 19. We
affirm the rejection of claim 19. Claim 20 falls with claim 19 because it was
not separately argued.
Rejection under § 103 over Alliance by itself or in combination with
Clements
Claims 1-23 stand rejected under 35 U.S.C. § 103(a) as obvious over
Alliance by itself, or in combination with Clements (Answer).
The Examiner contends that “[a]lthough [Alliance] does not provide
specific examples of powders containing DPPC and lung surfactant, from
the guidance provided by [Alliance], it would have been obvious to one
ordinary skill in the art to use lung surfactant and DPPC powders with
claimed properties with a reasonable expectation of success, if the patient
requires a lung surfactant therapy” (Answer 8). The Examiner also argues
that “[s]ince WO teaches a composition which is a combination of lung
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