Appeal 2007-2524
Application 10/194,834
“a carrier component . . . to act as a carrier for the quinolone component.”
The carrier component is “ophthalmically acceptable.” Examples of
quinolones are norfloxacin, ciprofloxacin, and ofloxacin (Spec. 6: 3-4). The
composition is “free of any other component effective as a preservative, and
being sufficiently self-preserved so as to pass the United States Preservative
Efficacy Test.”
According to the Specification, quinolones have been used in
compositions for treating ocular infections (Spec. 1: 16-17). “These
antibiotic compositions include one or more additional components which
act as preservatives, for example, benzalkonium chloride (BAK) or
organomercurials” (Spec. 1: 17-20). “However, the use of BAK,
organomercurials . . . may be problematic. For example, BAK may be
incompatible with certain active components” (Spec. 1: 21-23) and “may
cause undesirable irritation and/or other disadvantageous side effects” (Spec.
6: 10-12). Appellants have found that quinolones have sufficient fungistatic
activity to act as a preservative against fungal contamination without
additional preservatives, such as BAK (Spec. 6: 13-23). “[T]he present
compositions including such quinolone components with no additional
preservative components is sufficiently preserved so as to pass the USPET
[United States Preservative Efficacy Test]” (Spec. 6: 20-23).
Claims 36-50, which are all the pending claims, stand rejected under
35 U.S.C. § 102(b) as anticipated by Cagle (US 5,631,004, issued May 20,
1997) (Answer 3). Appellants argue claims 36-43 separately from claims
44-50. We choose claims 36 and 44, respectively, as representative of each
grouping for the purpose of deciding this appeal. See 37 C.F.R. §
41.37(c)(1)(vii). Claims 36 and 44 read as follows:
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