Appeal No. 2006-2861
Application No. 10/007,272
methods comprising administering the compound in the specifically recited
crystalline form. . . . [A] composition containing only the compound in
solution does not fall within [the] claim language inasmuch as it fails to
include the recited crystalline form element of the claim. Similarly, what
happens to the drug after ingestion is irrelevant because the [method] claim
requires that it is the recited crystalline form of the compound that is
administered.” (Reply Br. 2.)
We agree with Appellants that the claims require a specifically recited
crystalline form of the compound. The specification appears to describe
pharmaceutical compositions in which the crystalline form is dissolved in a
solvent. (Specification 17-18.) However, we conclude that the language of
claim 11 requires that the pharmaceutical composition comprise the recited
crystalline form and therefore does not encompass compositions in which
the crystalline form is dissolved in a solvent such that the compound is no
longer in the crystalline form. Similarly, we conclude that the language of
claim 14 requires that the compound be administered to a human in the
recited crystalline form.
2. ANTICIPATION
The Examiner has rejected claims 11, 14, and 16-21 under 35 U.S.C.
§ 102(e) as anticipated by Chamberlain.1 The Examiner argues that the
crystal structure of the active ingredient is “irrelevant” because “i) the
pharmaceutical activity of the active ingredient is a function of the molecular
structure(s) adsorbed [sic] by the cells contacted by the composition and/or
ii) the crystal structure is destroyed by dissolution of the crystalline solid by
1 Chamberlain et al., U.S. Patent No. 6,077,832, issued June 20, 2000.
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