Appeal No. 2003-1424 Page 7
Application No. 09/961,623
For example, a search of the publicly accessible PubMed database
(http://www.ncbi.nlm.nih.gov/entrez/query.fcgi), using the keywords “benzoyl
peroxide”, “urea”, and “acne” turned up a reference entitled “Comparative trial of
benzoyl peroxide versus benzoyl peroxide with urea in inflammatory acne.”2 The
most relevant passage from the reference’s abstract states:
A clinical trial was performed to evaluate an improved vehicle for
topical benzoyl peroxide. Thirty-nine subjects participated in a split-
face, double-blind trial of topical benzoyl peroxide 5 percent versus
benzoyl peroxide 5 percent in 8 percent urea.
The study found “[n]o overall differences” between the effects of the two
compositions (that is, no added efficacy due to the addition of urea). However,
that makes no difference with respect to patentability if the disclosed composition
meets the limitations of Appellants’ claims. See Celeritas Techs. Ltd. v. Rockwell
Int’l Corp., 150 F.3d 1354, 1361, 47 USPQ2d 1516, 1522 (Fed. Cir. 1998) (“A
reference is no less anticipatory if, after disclosing the invention, the reference
then disparages it.”).
Upon return of this case, the examiner should consider the patentability of
the instant claims over the reference discussed above and any other references
discovered using “acne” as a search term along with other relevant keywords.
2 The reference citation is Prince et al., Cutis, Vol. 29, No. 6, pp. 638-40 and 644-45 (1982). A
copy of the abstract from the PubMed database is attached to this opinion.
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