Appeal 2007-3216
Application 10/271,433
Appellants contend that Mitra’s teaching about external application
would not suggest that the antimicrobials could be used inside the vagina
(App. Br. 10-11). They argue that it would “clearly be recognized by one
skilled in the art that the killing of bacteria externally is significantly
different than internally” (App. Br. 10).
However, Mitra teaches that the antimicrobial compounds are
effective at the external vaginal mucosa (FF M6) – and since the vaginal
interior also comprises mucosa – we see no reason that a teaching of success
for the external mucosa would not reasonably apply to the internal mucosa.
Appellants have not provided any evidence or arguments to rebut this
reasonable presumption.
Appellants also argue that introduction of antimicrobials into the
vaginal cavity “can significantly harm, or even kill, the host due to the
interaction of the antimicrobial with vaginal flora . . . . This is not a concern
when treating external symptoms of S. aureus infections” (Reply Br. 3).
However, Appellants do not cite evidence to support this position.
Arguments of counsel cannot take the place of evidence lacking in the
record. Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595, 44 USPQ2d
1610, 1615 (Fed. Cir. 1997). To the contrary, Brown-Skrobot teaches that
antimicrobial compounds, such as germicidal surfactants and polyhydric
aliphatic alcohols, have been introduced into the vaginal cavity (FF B1 and
B3). Thus, we discern no reservation on the part of persons of skill in the art
to have used antimicrobial agents inside the vagina.
Appellants also state that Mitra’s topical composition comprises
hydrocortisone which “may be harmful if used in a vagina” (App. Br. 9).
However, we agree with the Examiner’s response that “the basis of the
9
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: September 9, 2013