Appeal No. 1996-0944
Application No. 08/181,259
3. The method according to claim 1 wherein said vaginal infection consists of
bacterial vaginosis.
4. The method of treatment of a vaginal infection oaccording to claim 1 which
consists of applying by the topical route a pharmaceutically effective amount of
Rifaximin to a patient in need of said treatment.
5. The method according to claim 4 wherein said vaginal infection consists of
bacterial vaginosis.
6. The method according to claim 4 wherein said topical application is carried
out by means of a vaginal foam.
7. The method according to claim 4 wherein said topical application is carried
out by means of a cream.
Thus, the claimed pharmaceutical composition is obvious over the pharmaceutical composition
specifically required by the methods of Egidio.
Appealed claim 24 requires between 50 and 500 mg of rifaximin while claim 1 of Egidio recites
a “therapeutically effective amount” of rifaximin. In order to determine what constitutes a
“therapeutically effective amount” of rifaximin, one must consult the specification of Egidio. In re
Vogel, 422 F.2d 438, 441-42, 164 USPQ 619, 622 (CCPA 1970) (the specification of a patent may
be consulted under these circumstances not as prior art, but “to learn the meaning of terms in a claim”).
Turning to Egidio, col. 2, lines 24-26, we find that as in the present invention a “therapeutically effective
amount of rifaximin, [is] preferably between 50 mg and 500 mg.” Thus, it is apparent that claims 1-7 of
Egidio encompass the pharmaceutical composition of appealed claim 24.
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