Appeal No. 1997-0003
Application No. 08/342,614
ordinary skill in the art would have reasonably expected that a composition comprising 4
additional grams of sodium ions would act in the same, or substantially the same, manner
as the composition taught by Biener, especially since sodium chloride is not the only active
ingredient in the claimed therapeutic composition. Titanium Metals Corp. of America v.
Banner, 778 F.2d 775, 782, 227 USPQ 773, 779 (Fed. Cir. 1985). Accordingly, absent an
unexpected result, we find that the claimed concentration of sodium chloride would have
been obvious to one of ordinary skill in the art at the time the invention was made.
Claims 26, 27, 38 and 39 are directed to a method of treating acne using the
compositions of claims 21 and 34 wherein said compositions contain 1 to 2.5
grams/kilogram bromide ions or 0.1 to 0.3 grams/kilogram of strontium ions. Again, we
find the claimed range of bromide and strontium ions are within the range taught by Biener
and, thus, would have been obvious to one of ordinary skill in the art. As discussed above,
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 claimed range achieves unexpected results relative
to the prior art range.” In re Woodruff, 919 at 1578,
16 at 1936.
As to claims 16 and 17, which are directed to methods of treating seborrheic
dermatitis using the compositions described in claim 34, we direct attention to our
discussion above with respect to claim 33 as to why the teachings of Biener with respect
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