Appeal 2007-2524
Application 10/194,834
Claims 44-50
Claim 44 depends on claim 36, but is directed to a method of
“administering to a living mammalian eye a therapeutically effective amount
of the composition of claim 36.”
Appellants argue, as they did for claim 36, that “Cagle does not
disclose administering to a living mammalian eye a therapeutically effective
amount of a self-preserved quinolone composition. Rather, Cagle discloses
methods of administering a sustained release antibiotic composition; in the
only two examples (Examples 1 and 3) in which the sustained release
composition is actually enabled, the composition also contains a separate
BAC preservative” (Br. 13). For the same reasons discussed above, we do
not find this argument persuasive.
Appellants also contend that “Example 3 [2; sic] discloses a
composition lacking BAC, the concentration of the quinolone recited therein
(0.03%) is below the dosage claimed in any of the present method claims.
Further, Example 2 is drawn to an experimental quinolone composition (for
determining the corneal partition coefficient) rather than a therapeutic
composition” (Br. 13). We do not agree. Example 2 is not cited as an
anticipatory composition; rather Example 2 is evidence that a preservative is
not a necessary component of Cagle’s solution.
For the foregoing reasons, we conclude that the Examiner did not err
in rejecting claims 44 as anticipated by Cagle. Claims 45-50 fall with claim
44 because they were not separately argued.
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