Appeal 2007-3734
Application 11/286,137
We conclude that claim 1 is anticipated by Baker or Newman, and
therefore would have been obvious over the applied references. Anticipation
is the epitome of obviousness. In re McDaniel, 293 F.3d 1379, 1385-1386
(Fed. Cir. 2002).
Baker describes “a pharmaceutical composition comprising a
combination of synergistically effective analgesic amounts of oxycodone,
. . . and ibuprofen” (Baker, col. 2, ll. 19-22). Specifically, Baker describes
tablets containing oxycodone hydrochloride and ibuprofen (id. at col. 4,
ll. 20-59).
Newman describes “a unitary formulation (or oral dosage form)
containing an effective analgesic amount of (a) oxycodone or a
pharmaceutically acceptable salt thereof and (b) ibuprofen or a
pharmaceutically acceptable salt thereof” (Newman ¶ 8). Specifically,
Newman describes tablets containing oxycodone hydrochloride and
ibuprofen (id. at ¶¶ 59 and 60).
Neither Baker nor Newman specifically recites that
14-hydroxycodeinone or a pharmaceutically acceptable salt thereof is
present in their compositions. However, Chapman states that “[c]urrent
commercially-available oxycodone hydrochloride API [active
pharmaceutical ingredient], and oxycodone hydrochloride prepared by
known procedures, have a level of 14-hydroxycodeinone of greater than
100 ppm” (Chapman ¶ 13). Thus, we find that Chapman provides evidence
that the oxycodone hydrochloride-containing tablets described in Baker and
Newman inherently contain 14-hydroxycodeinone.
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