Appeal No. 1997-2742
Application 08/348,815
35 U.S.C. § 103
None of the cited references teaches or suggests that moenomycin or its
derivatives would be effective against H. pylori infections. The examiner has not
established that a person having ordinary skill in the art would have been led from “here to
there,” i.e., from the disclosures in Welzel, Huber, and Axon to the pharmaceutical
composition and method claims on appeal.
The rejection of claims 7 through 12 under 35 U.S.C. §103 as unpatentable “over
Welzel et al. or Huber in combination with Axon” is reversed.
35 U.S.C. §112, FIRST PARAGRAPH
In their specification, appellants establish by in vitro testing that moenomycin A is
active against H. pylori strain P22. In further in vitro testing, appellants determine the
minimum inhibitory concentration of moenomycin A against H. pylori strains P9, P19, and
M84. See the instant specification, pages 11 and 12, Examples 1, 2, and 3.
On the other hand, claims 7, 8, 10 and 11 are drawn to in vivo methods for
controlling H. pylori infection in a patient. Independent claim 7 recites
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