Appeal 2007-3216
Application 10/271,433
composition of Brown-Skrobot et al. because both Brown-Skrobot et al. and
Mitra et al. are directed to the same problem solving area, namely to treating
microbial infections, specifically those caused by S. aureus, and the
symptoms associated therewith” (Answer 4).
After reviewing the evidence presented by the Examiner, including
the findings and reasons for combining the prior art (Answer 3-5) as
summarized above, we conclude that the Examiner has sustained the burden
of establishing prima facie obviousness of claim 1.
Once prima facie obviousness has been established, the burden of
coming forward with evidence or argument shifts to the applicant. In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). See
also Hyatt v. Dudas, 492 F.3d 1365, 1370, 83 USPQ2d 1373, 1375-76 (Fed.
Cir. 2007). Thus, we turn to Appellants’ arguments.
Claims 1, 4 and 5
Appellants argue that Mitra “make[s] no mention of using their
compositions in a vagina or inside of a body anywhere” (App. Br. 8), stating
“it is clear . . . that the compositions described therein are being using for
treatment of external symptoms” (App. Br. 8).
Mitra teaches that various antimicrobial compounds, including
hexachlorophene which is a compound recited in claim 1, can be applied to
vaginal mucosal tissue (FF M4-M7). Mitra describes topical application of
these compounds to vaginal mucosal tissues (FF M1, M5-M6), without
explicitly stating whether the application is “in” or “around” the vagina as
recited in claim 1. However, Appellants provided evidence (App. Br. 8;
Exhibit A) that Mitra intended the topical application to be applied to the
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