Appeal No. 97-1843
Application 08/092,574
I. The examiner should consider whether Hansen is prior art under 35 U.S.C.
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§ 102(a) .
Hansen discloses applying FUCITHALMIC® to the eye in the form of drops to treat
external eye infections. According to Hansen, FUCITHALMIC® is a one per cent
microcrystalline suspension of fusidic acid in a “carbomer” gel, made isotonic with
mannitol and pH adjusted to 5.6, and preserved with benzalkonium chloride and EDTA.
Hansen, page 329, first paragraphs of columns 1 and 2. According to MEDLINE abstract
AN 86164451, Hansen has a publication date of Oct-Dec 1985.
In a response filed in Paper No. 36, Oct. 27, 1994, to a rejection under 35 U.S.C. §
103 over Hansen, appellant argued that Hansen is not prior art for the following reasons:
(1) the instant application has a foreign priority filing date of Jan. 7, 1985 (based on British
patent application No. 8500310 (BP’310)), which precedes the Jan. 7, 1986 filing date of
PCT/DK86/00002; (2) appellant’s assignee in Denmark states that the relevant copy of
Hansen was not received by them until March 10, 1986; and (3) FUCITHALMIC® is
“appellant’s assignee’s product according to the invention.”
3 Chemical Abstracts (104) 199554 (1986) of Hansen was cited of interest in the
Office action mailed Aug. 5, 1988, in the grandparent Application Serial No. 06/908,802.
Hansen was cited as a reference in a prior art rejection set forth in Paper No. 35, mailed
on Jul. 27, 1994.
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