Appeal 2007-3216
Application 10/271,433
rejection, which is to incorporate antimicrobial active agents disclosed by
Mitra et al., and not the entire topical composition, into the feminine
compositions” of Brown-Skrobot (Answer 7).
For the foregoing reasons, we affirm the rejection of claim 1. Claims
4 and 5 fall with claim 1 because their patentability was not separately
argued. See 37 C.F.R. § 41.37(c)(1)(vii).
Claims 41-43
Claims 41-43 are directed to the method of claim 1 in which the active
agent is present in a specifically recited amount. The Examiner contends
that
it would have been obvious to one of ordinary skill in the art to
optimize the antimicrobial activity of the composition of the
combined references such that the desired inhibition of TSST-1
production is achieved. “[W]here the general conditions of a
claim are disclosed in the prior art, it is not inventive to
discover the optimum or workable ranges by routine
experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ
233, 235 (CCPA 1955).
(Answer 5.)
Appellants argue that the amounts described in Mitra are
“significantly higher than the amount of first active ingredient claimed in . . .
claims 41-43” (App. Br. 14).
We do not find this argument persuasive. As pointed out by the
Examiner, after teaching specific amounts of antimicrobial ingredients,
Mitra states that the “level is selected to provide the desired level of
antimicrobial activity and can be modified as desired” (Mitra, at col. 3, ll. 5-
7). This supports the Examiner’s argument that determining the effective
amounts of an antimicrobial would have been routine experimentation
10
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: September 9, 2013