Appeal No. 1996-0944
Application No. 08/181,259
A discussion of Remington is not necessary to our decision since Remington does not remedy
the deficiencies noted above.
We find that the examiner has relied on impermissible hindsight in making the determination of
obviousness. In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992) (“It is
impermissible to engage in hindsight reconstruction of the claimed invention, using the applicant’s
structure as a template and selecting elements from references to fill the gaps.). Therefore, the
rejection of claims 24-30 under 35 U.S.C. § 103 as being unpatentable over Parenti in view of Merck
and Remington is reversed.
2. New grounds of rejection - 37 C.F.R. § 1.196(b)
We reject (a) claim 24, (b) claim 30 and (c) claims 25-29 under the judicially created doctrine
of obviousness-type double patenting over claims 1-7 of Egidio taken (a) alone, (b) in view of Curtis-
Prior and (c) in view of Parenti, Remington and Curtis-Prior.
Claims 1-7 of Egidio read as follows:
1. A method of treatment of a vaginal infection which consists of administering
topically to a subject in need of treatment a vaginal pharmaceutical composition
containing a therapeutically effective amount of Rifaximin in the form of a foam, a
cream, a gel, a vaginal ovule or a vaginal capsule.
2. The method according to claim 1 wherein said treatment is with said foam,
the flora of Gardnerella vaginalis, Mobiluncus spp., Bacteroides spp. and
Streptococcus pyogenes are eliminated and the vaginal bacterial flora is normalized
with the reappearance of the Doderlein’s bacillus.
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