Appeal No. 1997-2750
Application 08/191,734
We find, therefore, no limitation in claims 4 or 5 serving to patentably distinguish over the
combined disclosures of Kligman and the SALCARE SC92 brochure.
Considering now claim 11, the format or structure of this claim is different from that
of claim 5. The latter claim depends from claim 4 and requires that the pharmaceutical
active is an anti-acne drug selected from a Markush group of specific drugs. Claim 11,
however, does not require that the pharmaceutical active is an anti-histaminic drug.
Rather, claim 11 specifies that, when the pharmaceutical active is an antihistaminic drug,
that drug is selected from a Markush group of specific antihistamines. Claim 11, like claim
4, “reads on” a topical pharmaceutical composition wherein the pharmaceutical active is
an anti-acne drug. The same infirmity plagues claims 12 through 22. All of those claims,
like claim 11, “read on” a topical pharmaceutical composition wherein the pharmaceutical
active is an anti-acne drug. Accordingly, claims 11 through 22 would have been prima
facie obvious in view of the combined disclosures of Kligman and the SALCARE SC92
brochure for the same reasons previously discussed with respect to claims 1 and 4.
Applicants' main argument is that their combination of a safe and effective amount
of a pharmaceutical active, and from about 0.1% to about 10.0% of a high molecular
weight crosslinked cationic polymer having the formula spelled out in claim 1, provides
enhanced penetration of a pharmaceutical active through the skin during transdermal
administration of the claimed composition. According to applicants, the cited prior art
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