Appeal No. 1997-2742
Application 08/348,815
A treatment method for controlling H. pylori infection which comprises administering
to a patient in need of such treatment an effective amount of moenomycin or a
derivative thereof. [emphasis added]
Likewise, claim 10 recites
A treatment method for controlling H. pylori infection which comprises administering
to a patient in need of such treatment a pharmaceutical composition as claimed in
claim 9. [emphasis added]
The pharmaceutical composition “as claimed in claim 9” comprises “effective
amounts of moenomycin or a derivative thereof combined with one or both of a further
active ingredient from the treatment of gastric ulcers or an additional antibiotic together
with a pharmacologically acceptable carrier.” Claims 8 and 11 depend from claims 7 and
10, respectively, and are limited to treating gastric ulcers associated with H. pylori
infection.
On this record, we find no error in the examiner’s determination that in vitro testing in
the specification is insufficient to provide enabling support for claims which define in vivo
methods for controlling H. pylori infection. After all, as correctly found by the examiner, “H.
pylori is very sensitive to a wide range of antibiotics in vitro. Unfortunately, when used as a
treatment in vivo few are effective.” (Axon, page 65, first paragraph). Considering the state
of the prior art at the time the invention was made, as reflected in the above-quoted passage
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