Appeal No. 1996-0944
Application No. 08/181,259
Pursuant to the provisions of 37 C.F.R. § 1.196(b), we make the following new rejections:
Claim 24 is rejected under the judicially created doctrine of obviousness-type double patenting
as being unpatentable over claims 1-7 of U.S. Patent No. 5,314,904. Claim 30 is rejected under the
judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1-7
of U.S. Patent No. 5,314,904 in view of Curtis-Prior. Claims 25-29 are rejected under the judicially
created doctrine of obviousness-type double patenting as being unpatentable over claims 1-7 of U.S.
Patent No. 5,314,904 in view of Parenti, Remington and Curtis-Prior. 5
In reaching our decision in this appeal, we have given careful consideration to the appellants’
specification and claims, to the applied prior art references and to the respective positions articulated by
the appellants and the examiner. We make reference to the examiner’s answer (Paper No. 14, mailed
September 21, 1995) for the examiner’s reasoning in support of the rejection, and to the appellants’
brief (Paper No. 12, filed June 30, 1995) and to the appellants’ reply brief (Paper No. 14, filed
October 6, 1995) for the appellants’ arguments thereagainst.
THE INVENTION
Appellants’ invention is directed to a pharmaceutical foam or cream composition for topical
treatment of bacterial vaginosis, caused by at least one of Gardnerella vaginalis, Bacteroides bivius-
5We note that no restriction requirement between method claims and composition claims was made in the
record of parent Application 07/899,421. Thus, appellants apparently cancelled the composition claims in ‘421
voluntarily.
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