Appeal No. 2007-0055 Page 11
Application No. 10/053,299
Zeng teaches a pharmaceutical composition comprising amino acids,
oligopeptides and/or polypeptides which “can change the metabolic process of bacteria
in the vagina and reduce vaginal acid production.” Zeng, column 3, lines 45-47. The
compositions can be used to treat high acidity vaginitis and fungal vaginitis. Id., column
6, lines 35-40. In one example, Zeng applied a mixture of amino acids, including
isoleucine, to a female patient diagnosed with “’high-acidity in vagina accompanying
fungal infection.’” Id., column 13, “Experimental Example 4”; columns 8-9, “Example 8.”
After application of the drug for three days, there was no evidence of fungal spores. Id.
The Examiner argues that Zeng teaches compositions which comprise isoleucine
in amounts which overlap with the claimed ranges and amounts.
Zeng does not expressly teach Applicant's ranges of ‘microbial blocking
quantities’ recited in instant claims 2-4. However, absent any showing of
criticality accruable from the instant ranges, it would have been deemed obvious
to one of ordinary skill in the art at the time the invention was made to determine
suitable ranges or amounts of through the use of routine or manipulative
experimentation to obtain the best possible results, as these are variable
parameters within the art.
Answer 15-16.
Appellants contend that Zeng teaches compositions which comprise
“formulations or combinations of many amino acids.” Br. 26 (quoting from Zeng, column
4, lines 11-21). They admit that isoleucine is included as one of the amino acids in
Zeng’s mixture, but they argue none of the compositions employed by Zeng contain
fewer than eight amino acids. Id., 26. Moreover, Zeng states that a “composition
containing only one or two sodium salts of amino acids can also party [partly] realize the
object of the invention,” which Appellants argue “in effect directs one skilled in the art
away from using only one or two amino salts.” Id., 26. Appellants also assert that the
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