Appeal 2007-1348
Application 10/650,253
1 because on placing the substantially pure Form F in water there no longer
2 would be any Form F. Examiner’s Answer, page 3.
3 Using similar reasoning, the Examiner found that when substantially
4 pure Form F is placed in water, a mixture of the azithromycin and water of
5 appellants would be the same as a mixture of the azithromycin of Bright and
6 water. Examiner’s Answer, pages 4-5.
7 We agree with appellants, however, that claim 125 requires the
8 presence of substantially pure azithromycin Form F.
9 To the extent that a mixture does not contain substantially pure
10 Form F, it cannot fall within the scope of claim 125.
11 We can assume, as did the Examiner, that substantially pure Form F
12 would not maintain its crystalline structure in water.
13 A mixture of (1) azithromycin, resulting from de-crystallization of
14 Form F when placed in water, and (2) water are not covered by, and do not
15 fall within the scope of claim 125.
16 Even if we assume that some embodiments within the scope of
17 claim 125 might be non-enabled, the composition defined by claim 125
18 would still be useful and the specification otherwise advises one skilled in
19 the art how to make and use substantially pure azithromycin Form F mixed
20 with other carriers and diluents. In re Angstadt, supra.
21 Bright does not describe a mixture containing substantially pure
22 azithromycin Form F.
23 Accordingly, Bright cannot describe a mixture within the scope of
24 claim 125.
25
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