Appeal No. 2006-0429 Page 7
Application No. 10/348,399
A pharmaceutical composition comprising 4,5-difluoro-10-aza-tricyclo [6.3.1.02,7]
dodeca-2(7),3,5,-triene hydrochloride and doxepin hydrochloride meets all the
limitations of claims 1, 4-7, and 9. The preamble of claim 1 does not distinguish the
claimed composition from the one made obvious by the prior art because it is merely a
statement of intended use. See Rowe v. Dror, 112 F.3d at 478, 42 USPQ2d at 1553.
Summary
We vacate the examiner’s rejection and enter two new rejections based on
obviousness. We have considered the arguments presented in the Appeal Brief and
Reply Brief but do not find them relevant to the new grounds of rejection.
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Last modified: November 3, 2007