Appeal No. 2001-1177 Page 4
Application No. 08/781,868
Discussion
According to Appellant, the composition claims stand or fall together and
the method claims stand or fall together. See the Appeal Brief, page 5.
Therefore, where multiple claims have been rejected on the same basis, we have
considered claim 35 as representative of the composition claims and claim 45 as
representative of the method claims. See 37 CFR § 192(c)(7).
1. Obviousness-type double patenting
The examiner rejected claims 35, 36, and 38 under the judicially-created
doctrine of obviousness-type double patenting, on the basis that these claims are
not patentably distinct from claims 1, 3, and 5-7 of Appellant’s issued patent
5,677,791 (“Hersh”). We agree. Instant claim 35 is directed to a composition
comprising glutathione and selenoamino acid “in amounts suitable for enhancing
repair of skin from free radical damage.” The specification states that the
claimed “composition can be formulated as a lotion containing from about 0.01%
to 10% of the above described active ingredients.” Page 27. The specification
also provides exemplary compositions containing 0.03% glutathione and 0.03%
selenomethionine.
Claim 1 of Hersh is directed to a composition for topical application
comprising at least 0.01% selenomethionine and at least 0.03% glutathione.
Thus, the instantly claimed composition and Hersh’s compositions contain the
same ingredients in the same amounts. Instant claim 35 is therefore anticipated
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