Appeal No. 1995-3257
Application 08/056,382
Obviousness-Type Double Patenting
Claims 6-9, 11, 19 and 20 are rejected under the
judicially created doctrine of obviousness-type double
patenting over claim 1 of U.S. Patent No. 5,177,016.
Claim 19, the independent claim, is representative of the
rejected claims and reads as follows:
19. A topical pharmaceutical composition useful for
decreasing the toxic affect [sic] in animals caused by
the administration of an anthracycline antibiotic for
cytostatic therapy comprising an antidotal effective
amount of an anti-anthracycline antibiotic monoclonal
antibody produced by a hybridoma deposited at ECACC under
No. 90011003 on January 12, 1990, and a pharmaceutically
acceptable topical carrier.
Below, we reproduce claim 1 of U.S. Patent No. 5,177,016:
1. Monoclonal antibody which specifically binds
anthracycline glycosides belonging to subclass IgG2
secreted by the hybridoma deposited at European
Collection of Animal Cell Cultures (ECACC) under N.
90011003.
The issue is whether claim 19, with its additional
features, is an obvious variation of patent claim 1. In
re Vogel, 422 F.2d 438, 441, 164 USPQ 619, 622 (CCPA
1970). If it is, then the rejection is proper and can
only be overcome by filing a terminal disclaimer.
Otherwise, claim 19 must be patentably distinct from
patent claim 1. In re Goodman, 11 F.3d 1046, 1052, 29
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