Appeal 2007-3216
Application 10/271,433
selected an antimicrobial agent active against S. aureus for inclusion in a
vaginal douche was explicitly stated in the prior art. In their own
Specification, Appellants acknowledge this demand (Spec. 4-5).1 The
choice of hexachlorophene as the particular antimicrobial agent to
incorporate into the douche would have been obvious to persons of skill in
the art since it would have been known to have activity against S. aureus
(Answer 4), a fact which Appellants do not challenge.
Mitra also teaches the suitability of the antimicrobial agents, including
hexachlorophene, for the vagina mucosa (FF M4-M7; Answer 4).
Therefore, the skilled worker would have reasonably expected that they
could be effectively applied to the mucosa inside the vagina in accordance
with Brown-Skrobot’s teaching of the need for a vaginal douche to treat S,
aureus infection. (An analysis for obviousness under 35 U.S.C. § 103
requires consideration of “whether the prior art would also have revealed
that in so making or carrying out, those of ordinary skill would have a
reasonable expectation of success.” Medichem, S.A. v. Rolabo, S.L., 437
F.3d 1157, 1164, 77 USPQ2d 1865, 1869 (Fed. Cir. 2006)).
In sum, the prior art provides both a reason to have utilized an
antimicrobial agent, such as hexachlorophene, in a douche to treat S. aureus
infection, and a reasonable expectation of success in doing so.
1 “Despite the aforementioned [prior art] attempts, there continues to be a
need for compounds that will effectively inhibit the production of TSST-1
from Gram positive bacteria, and maintain activity even in the presence of
the enzymes lipase and esterase which can have adverse effects on potency
and which may also be present in the vagina.”
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