Appeal No. 1997-2742
Application 08/348,815
we believe that more is required to provide enabling support for claims drawn to in vivo
methods for controlling H. pylori infection in a patient. Again, it was known at the time the
invention was made that “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). On this record, appellants have not established that moenomycin or its
derivatives are effective in vivo for controlling H. pylori infection.
The rejection of claims 7, 8, 10 and 11 under 35 U.S.C. §112, first paragraph, is
affirmed.
CONCLUSION
In conclusion, 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. The
rejection of claims 7, 8, 10 and 11 under 35 U.S.C. § 112, first paragraph, as based on a
non-enabling disclosure, is affirmed. Accordingly, the examiner’s decision is affirmed-in-
part.
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