Appeal No. 1997-2750
Application 08/191,734
would have arrived at the subject matter sought to be patented in claim 1 with a reasonable
expectation of achieving the benefits and performance characteristics associated with the
known gelling agent/thickener SALCARE SC92. In our judgment, the combined
disclosures of Kligman and SALCARE SC92 provide the requisite reason, suggestion, or
motivation, and reasonable expectation of success, to here sustain a rejection under 35
U.S.C. § 103. We note that the examples of gelling or thickening agents set forth in
Kligman are non-limiting in nature; that the particular agent polyacrylamide illustrated by
Kligman in column 10, line 66, is related to SALCARE SC92, a copolymer containing
acrylamide as a monomeric component; and that the “secondary” reference discloses that
SALCARE SC92 is a gelling agent or thickener useful in formulating aqueous gels for
topical administration, possessing a number of benefits and advantageous performance
characteristics.
For the same reasons, the subject matter sought to be patented in claims 4 and 5
would have been prima facie obvious in view of the combined disclosures of Kligman and
the SALCARE SC92 brochure. Claim 4 “reads on” a topical pharmaceutical composition
wherein the pharmaceutical active is an anti-acne drug. Claim 5 depends from claim 4
and requires that the pharmaceutical active is an anti-acne drug selected from the group
consisting of, inter alia, salicylic acid, benzoyl peroxide, and mixtures thereof. The active
ingredient disclosed by Kligman is a combination of salicylic acid and benzoyl peroxide.
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