Appeal No. 2001-1335
Application No. 08/843,582
Regarding the section 102 rejection of composition claim 28,
the examiner states that “the instantly claimed composition is
anticipated by Bringmann’s aqueous formulation comprising 0.05%
dioncophylline B and water (column 4, lines 10-13), which is also
a pharmaceutically acceptable carrier” (answer, page 4). We
cannot agree for at least two reasons. First, it is not at all
clear that Bringmann’s aqueous formulation (i.e., the formulation
of patentee’s Example 1) constitutes a pharmaceutical composition
of at least one pharmaceutically acceptable carrier as required
by the claim under review. This is because, contrary to the
examiner’s apparent belief, this formulation does not comprise
only dioncophylline B and water. It also includes at least one
other ingredient, namely, an emulsifier (e.g., see line 56 in
column 3). For all we know, this additional ingredient may be
contrary to a pharmaceutical composition having at least one
pharmaceutically acceptable carrier as required by the here
rejected claim. Thus, the examiner necessarily has implicitly
assumed that Bringmann’s formulation comprises the appellant’s
claimed pharmaceutical composition having at least one
pharmaceutically acceptable carrier.
Additionally, the examiner necessarily has implicitly
assumed that Bringmann’s formulation satisfies the antimalarially
4
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007