Appeal No. 2002-0438 Page 2
Application No. 09/181,671
wherein the modification is “characterized by the X-ray diffractogram, reflections
not coinciding with the reflections of the other two modifications being observed,
inter alia, at 6.97°2θ (12.67 Å), 18.02°2θ (4.92 Å) and 19.94°2θ (4.45 Å).”
Claims 2 and 3 are drawn to Modification B and Modification C of the
2-amino-4-(4-fluorobenzylamino)-1-ethoxy-carbonylaminobenzene compound,
each modification being defined by peaks appearing on the X-ray diffractogram.
Claim 16 is drawn to pharmaceuticals “comprising the modification A, B or C” of
the compound, “and, if appropriate, exipients and or auxiliaries.”1
The examiner relies upon the following art:
German Patent Application
Dieter et al. (Dieter) DE 42 00 259 Jul. 15, 1993
Kirk-Othmer, “Crystallization,” Encyclopedia of Chemical Technology, 4th Ed.,
Vol. 7, pp.700-702 (1993)
The claims stand rejected under 35 U.S.C. § 103(a) as being obvious over
the combination of Dieter and Kirk-Othmer. After careful consideration of the
record and the issue before us, we reverse.
DISCUSSION
The Examiner’s Answer rejects claims 1-3 and 16 as being obvious over
the combination of Dieter and Kirk-Othmer. Dieter is cited for teaching the
compound 2-amino-4-(4-fluorobenzylamino)-1-ethoxy-carbonylaminobenzene, as
1 Note that the panel is interpreting this claim as requiring one of Modification A,
Modification B or Modification C, but excluding mixtures of the disclosed
modifications.
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