Appeal No. 2007-0055 Page 17
Application No. 10/053,299
Appellants argue that “[c]hanging [the] metabolic process of bacteria to produce
less acid is clearly not a statement that the bacterial can otherwise be killed or reduced
in number.” Reply Br. 13-14. We do not find this argument persuasive because the
claim does not require that the bacteria be “killed or reduced in number.” Locally
administering Zeng’s composition treats bacterial infection associated with vaginitis,
meeting the requirements of claim 44. The rejection of claim 44 is affirmed.
Other issues
Upon return of this application to the technology center, we encourage the
Examiner and Appellants to consider an additional issue that was not addressed in the
Brief or Answer. According to Pederson, the metal ion amino acid chelate oxidizes
volatile sulfur compounds in the oral cavity. Pederson, column 8, lines 10-12. This
apparently is based on the ability of the zinc ion to oxidize sulfhydryl groups. Id.,
column 1, lines 57-61. Pederson also states that “amino acids may contribute to the
desirable formation of chelates capable of releasing a metal ion under suitable
conditions.” Id., column 6, lines 40-45. These statements raise the question of whether
the metal ion is released from the amino acid during its reaction with the volatile sulfur
compounds, leaving free amino acid behind. If this were the case, free amino acid (e.g.,
isoleucine) would be available to block microbial adherence, raising an issue of inherent
anticipation of at least claim 1. The Examiner should consider whether the facts in
Pederson and other prior art make it reasonable to presume that free amino acid is
released in Pederson’s method, and if so, an appropriate rejection should be entered.
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