Appeal No. 2000-0091
Application No. 08/732,254
monomethanesulfonate salt.1 The claims list the powder X-ray diffraction
measurements that distinguish the claimed crystal forms from other forms of
delavirdine mesylate.
The examiner relies on the following reference:
Palmer et al. (Palmer) 5,563,142 Oct. 8, 1996
Claims 1 and 2 stand rejected under 35 U.S.C. § 102(e) as anticipated by
Palmer.
Claims 1 and 2 also stand rejected under 35 U.S.C. § 103 as obvious over
Palmer.
Claims 1 and 2 also stand rejected for both statutory and obviousness-
type double patenting, based on the claims of Palmer.
We reverse all of the rejections.
Discussion
The claims are directed to delavirdine mesylate in the S crystal form (claim
1) or in the T crystal form (claim 2). The examiner rejected the claims, under
several different rationales, over the Palmer patent.
1. Statutory double patenting
The examiner rejected the claims under 35 U.S.C. § 101 “as claiming the
same invention as that of claim 11 of prior U.S. Patent No. 5563142.”
Examiner’s Answer, page 4. The examiner explained that “[i]n the absence of
1 This compound is also known as delavirdine mesylate, Appeal Brief, page 2, and we will refer to
it as such.
2
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