Appeal 2007-3216
Application 10/271,433
external vaginal mucosa (i.e., “around” the vagina, but not “in” it). The
Examiner does not challenge Appellants’ evidence, and as we find no error
in it, we adopt this position as our own. Nonetheless, we are not persuaded
that this fact changes the conclusion that the subject matter of claim 1 would
have been obvious to persons of skill in the art.
As explained by the Examiner, Brown-Skrobot teaches that vaginal
infections caused by S. aureus can be treated with a douche composition
which is introduced into the vagina (FF B3; Answer 3). Brown-Skrobot’s
composition contains a polyhydric aliphatic alcohol as the active agent in
treating S. aureus (FF B3). While Brown-Skrobot does not explicitly
suggest that other antimicrobial agents could be delivered into the vagina to
treat vaginal S. aureus infections, in our opinion, the Examiner is correct in
concluding that persons of ordinary skill in the art would have found it
obvious to have done so.
As established by Brown-Skrobot, the idea of delivering antimicrobial
agents to inside the vagina by douche is not new. In Brown-Skrobot’s
background section, it is stated that “many women use liquid vaginal
douches to irrigate and cleanse the vagina and prevent vaginal infections”
(FF B1; Brown-Skrobot, at col. 1, ll. 25-27). Several prior art compositions
are described by Brown-Skrobot, including compositions that contain
germicidal surfactants (FF B1; Brown-Skrobot, at col. 1, ll. 38-60).
The demand for a douche comprising an active agent against S. aureus
TSST-1 was expressly acknowledged in the prior art. Brown-Skrobot state:
“there is a need to find a douche composition which is able to combat the
production of TSST-1 by Staphylococcus aureus within the vaginal cavity”
(Brown-Skrobot, at col. 3, ll. 48-50) (FF B2). Thus, a reason to have
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