Appeal No. 97-1843
Application 08/092,574
disclosure in Hansen and appellant’s statement that FUCITHALMIC® is “appellant’s
assignee’s product according to the invention,” it is not clear when FUCITHALMIC® was
first known by the public. If product brochures, marketing advertisements, package data,
etc. were publicly available prior to the effective filing date, such material would be relevant
in considering the patentability of claims 6 through 9. Determining the circumstances
surrounding the marketing of FUCITHALMIC® would be relevant in determining whether
the product brochures, marketing advertisements, package data, etc. are prior art under
35 U.S.C. § 102.
4
III. The examiner and appellant should also review the disclosure of Kogyo , and
determine whether this reference combined with the disclosure of Godtfredsen or other
relevant prior art renders obvious claims 6 through 9 under 35 U.S.C. § 103. The following
is a list of some of the relevant teachings of Kogyo and Godtfredsen that the examiner
should consider.
(1) Kogyo discloses ophthalmic gel compositions that comprise an aqueous
solution of a carboxyvinyl polymer, a water-soluble basic substance, and an ophthalmic
drug admixed therewith. Said gel compositions can have a pH of 5 to 8 and a viscosity of
4Kogyo is the British equivalent of French Patent Application 2,407,214. The
French Patent Application was cited as a “Y” reference in the PCT search report of
PCT/DK86/00002.
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