Appeal No. 1997-0003
Application No. 08/342,614
therapeutic agent and water. The examiner primarily relies on the table in col. 2 of the
patent, which lists the preferred cations and anions as well as their respective
concentrations, to demonstrate that Biener would have suggested a method of treating
acne or seborrheic dermatitis using compositions comprising salt mixtures having anions
and cations, and a therapeutic agent, within the claimed parameters to one of ordinary skill
in the art at the time the invention was made. Answer, pp. 2-3. We agree, in part.
I.
Turning first to claims 18 through 20, 31, 32 and 33, we find that they encompass a
method of treating acne or seborrheic dermatitis which comprises topically applying a
therapeutic salt composition comprising a mixture of cations (sodium, magnesium,
calcium and potassium) and anions (chloride, sulfate, hydrogen carbonate and carbonate),
a therapeutic agent and a solvent (water). The salt composition must contain at least 50%
by weight sodium chloride. Here, we agree with the examiner that the claimed method of
treating acne or seborrheic dermatitis would have been obvious to one of ordinary skill in
the art in view of the teachings of Biener.
First, the compositions described in the claims comprise ions which are within the
range taught by the applied prior art. See, e.g., dependent claim 20. Under such
circumstances, our appellate reviewing court has held that when “the difference between
the claimed invention and the prior art is some range or other variable within the claims ...
the applicant must show that the particular range is critical, generally by showing that the
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