Appeal No. 2001-0987
Application 09/169,109
mammal by administering to the mammal an anti-allergic effective amount of polymorph
form 2 loratadine. Claim 1, which is illustrative of the subject matter on appeal, reads as
follows:
1. Polymorph form 2 loratadine having the following x-ray powder diffraction
pattern expressed in terms of “d” spacing and relative intensities(“RI”).
d spacing (±0.05) RI
8.95 Weak
6.37 Weak
5.64 Weak
THE REFERENCES
The prior art references relied on by the examiner are:
Villani 4,282,233 Aug. 4, 1981
Sims et al. (Sims) WO 95/01792 Jan.19, 1995
(PCT Application)
THE REJECTIONS
Claims 1 through 8 stand rejected under 35 U.S.C. §103(a) as unpatentable over
the combined disclosures of Villani and Sims. Claims 1 through 8 further stand rejected
under the judicially created doctrine of obviousness-type double patenting over claim 7
of Villani in view of Sims.
DELIBERATIONS
Our deliberations in this matter have included evaluation and review of the
following materials: (1) the instant specification, including Figures 1 and 2, and all of the
claims on appeal; (2) the Appeal Brief (Paper No. 10); (3) the Examiner’s Answer
(Paper No. 11); and (4) the above -cited prior art references.
2
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