Appeal No. 2006-2861
Application No. 10/007,272
derivatives and their use in the treatment “of virus infections such as those
caused by herpes viruses,” specifically the treatment of humans. (Col. 1,
ll. 9-12; col. 5, ll. 47-52.) Chamberlain describes administering the
benzimidazole derivatives in a pharmaceutical formulation including one or
more carriers. (Col. 7, ll. 45-49.) As the benzimidazole derivative,
Chamberlain identifies the compound recited in claims 11 and 14. (Col. 15,
ll. 20-21.) However, we agree with Appellants that the Examiner has not set
forth a prima facie case that the compound described in Chamberlain has the
crystalline form recited in claims 11 and 14.
In particular, we agree with Appellants that the fact that the crystalline
forms may have the same biological activity as the amorphous form is
“irrelevant to the question of anticipation.” Because we conclude that
claim 11 is directed to a composition comprising the recited crystalline form
of the compound and claim 14 is directed to a method comprising
administering the recited crystalline form of the compound, Chamberlain
would need to disclose this crystalline form in order to anticipate.
Like claims 11 and 14, the other claims on appeal are directed to
compositions comprising, or methods of using, specific crystalline forms or
solvates of the recited compound: claims 16 and 17 are directed to
compositions comprising the ethanol solvate and Form V, respectively, of
the compound; claims 19 and 20 are directed to methods of administering
the ethanol solvate and Form V, respectively; and claims 18 and 21 are
directed to a composition comprising and a method of using, respectively, a
mixture of at least two different specified forms or solvates of the
compound.
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