Appeal No. 2001-0987
Application 09/169,109
2 loratadine, are unpatentable. We disagree. Here, we invite attention to In re Cofer,
354 F.2d 664, 667, 148 USPQ 268, 271 (CCPA 1966), where the court substantially
discredited PTO reliance on the above -quoted proposition of law in Hartop. Like the
situation presented in Cofer, the examiner in this case has not adequately established
that the prior art (1) suggests the polymorph form 2 of loratadine; or (2) discloses or
renders obvious a method for making the polymorph form 2 of loratadine.
Accordingly, the examiner’s rejection of claims 1 through 8 under 35 U.S.C.
§ 103(a) as unpatentable over Villani in view of Sims is reversed. For essentially the
same reasons, the rejection of claims 1 through 8 under the judicially created doctrine of
obviousness-type double patenting over claim 7 of Villani in view of Sims is also
reversed.
The examiner’s decision rejecting claims 1 through 8 is reversed.
REVERSED
)
Sherman D. Winters )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
William F. Smith )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
Douglas W. Robinson )
Administrative Patent Judge )
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