Appeal 2007-3935
Application 10/625,244
(claims 13 and 22), comprising applying a composition containing an
effective amount of benfotiamine (or other allithiamine), in a
dermatologically acceptable carrier, to the skin.
Runge teaches a composition comprising a carotenoid and at least one
other active substance in concentrations of 0.01 to 40% by weight (col. 2, ll.
41-46), wherein the composition may be a cosmetic preparation such as a
cream or lotion (reads on a dermatologically acceptable carrier) (col. 4, ll.
33-36). Runge teaches that the other active substance may be allithiamines,
such as benfotiamine (col. 3, ll. 3-4). Thus Runge teaches a cosmetic
composition comprising benfotiamine, and as it is a cosmetic composition, it
would be applied directly to the skin. Moreover, Runge teaches that the
benfotiamine may be present in concentrations of 0.01 to 40% by weight,
which overlaps with the range in claim 15 of about 0.05% to about 70% by
weight, thus Runge teaches using an effective amount of the allithiamine.
The facts in this case are very similar to the facts in Perricone v.
Medicis Pharmaceutical Corp., 432 F.3d 1368 (Fed. Cir. 2005). For
example, at issue in that case was a claim drawn to “[a] method for the
treatment of skin damaged or aged by oxygen-containing free radicals or
oxidative generation of biologically active metabolites which comprises
topically applying to affected skin areas a composition containing an
effective amount of an ascorbyl fatty acid ester in a dermatologically
acceptable, fat-penetrating carrier such that the ester is percutaneously
delivered to lipid-rich layers of the skin.” Id. at 1373. The prior art taught a
cosmetic composition for topical application that included ascorbyl
palmitate, among many other ingredients. Id. at 1376.
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