Appeal No. 1996-0944
Application No. 08/181,259
or foam (col. 5, lines 48-52) in suitable dosage preparations as found in Remington’s Pharmaceutical
Sciences, 17th Edition, 1985 (col. 5, line 67 - col. 6, line 2).
Merck describes Rifaximin as a nonabsorbable antibacterial agent useful as an intestinal
disinfectant, in infectious diarrhea, in hepatic encephalopathy and in intestinal infections.
Remington describes typical foam system topical pharmaceutical formulations.
According to the examiner, since Parenti uses an “antibacterial” agent in a vaginal composition,
it would have been obvious to modify the topical, vaginal antibacterial composition of Parenti by using
rifaximin as the active ingredient because Merck discloses that rifaximin is an antibacterial agent
(answer, pages 3-4). According to the examiner, both the target microorganisms and the target body
area(s) treated by the antibacterial composition are “irrelevant” (answer, page 5), i.e., since “rifaximin is
known as a pharmaceutical ... it would be obvious to place it in a pharmaceutical composition”
(answer, page 4). We disagree.
First, the examiner’s proposed modification of Parenti would destroy a fundamental
characteristic of Parenti, i.e., the ability to effectively treat each of the three types of infectious vaginitis
simultaneously. The examiner has failed to explain what would have motivated one of ordinary skill in
the art to destroy such a fundamental characteristic of Parenti.
Second, both the target microorganisms and the target body area(s) are relevant. A target
microorganism’s sensitivity to a particular antibacterial agent is a primary motivating factor in selecting
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