Ex Parte Huang et al

Patent Trial and Appeal Board

Nov 30, 2012

11094496 (P.T.A.B. Nov. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/094,496 03/30/2005 Lei Huang KCX-949 (21052) 1471
22827 7590 11/30/2012
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
EXAMINER
WEBB, WALTER E
ART UNIT PAPER NUMBER
1612
MAIL DATE DELIVERY MODE
11/30/2012 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte LEI HUANG and SHU-PING YANG
__________

Appeal 2012-000816
Application 11/094,496
Technology Center 1600
__________

Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
ERICA A. FRANKLIN, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
method for inhibiting and/or treating infection caused by Candida albicans.
The Patent Examiner rejected the claims as obvious. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm-in-part.

STATEMENT OF THE CASE
Claims 7, 9-12, 15-16, 20-28, 46 and 53-54 are on appeal. Claims 21,
53 and 54 are representative and read as follows:

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21. A method for inhibiting and/or treating infection caused by
Candida albicans, the method comprising administering a treatment
composition into a vagina of a female who has a vaginal infection caused by
Candida albicans, the treatment composition comprising from about 1 to
about 100 milligrams per milliliter of a saccharide that consists of a
nonionic alkyl glycoside, wherein the alkyl glycoside has the following
formula:

wherein,
Z is a residue of glucose, fructose, maltose, maltotriose, lactose,
galactose, mannose, dextrose, xylose, sucrose, leucrose, or combinations
thereof;
n is from about 1 to about 1000; and
R is an alkyl group having 8 to 30 carbon atoms.
wherein the treatment composition is free of additional anti-microbial
agents effective against Candida albicans.

53. The method of claim 21, wherein the treatment composition is
free of additional anti-microbial agents effective against Candida albicans.

54. The method of claim 21, wherein the treatment composition is
free of additional anti-microbial agents.

The following grounds of rejection are presented for review in this
appeal:
• claims 7, 9-12, 15, 16, 20-24, 26-28, 46, 53, and 54 under 35 U.S.C.
§ 103(a) as unpatentable over Resheski-Wedepohl;
1

• claims 7, 9-12, 20-23 and 26-28 under 35 U.S.C. § 103(a) as
unpatentable over Resheski-Wedepohl and Liu;
2

1
Patent No. US 6,531,435 B1 issued to Kim L. Resheski-Wedepohl et al.,
Mar. 11, 2003.
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• claims 15, 16 and 24 under 35 U.S.C. § 103(a) as unpatentable over
Resheski-Wedepohl and Liu;
Appellants have not appealed the rejection of claim 25 under 35
U.S.C. § 103(a) as unpatentable over Resheski-Wedepohl and Wright
3
or the
rejection of claim 25 under 35 U.S.C. § 103(a) over as unpatentable over
Resheski-Wedepohl, Liu and Wright. (See Final Rejection 2-3, dated Oct.
12, 2010; App. Br. 3; Reply Br. 3.) We therefore summarily affirm both of
these unappealed rejections. MANUAL OF PATENT EXAMINING
PROCEDURE § 1205.02 (―If a ground of rejection stated by the examiner is
not addressed in the appellant’s brief, that ground of rejection will be
summarily sustained by the Board.‖); see also, Ex parte Frye, 2010 WL
889747 *4 (BPAI 2010) (precedential) (―If an appellant fails to present
arguments on a particular issue—or, more broadly, on a particular
rejection—the Board will not, as a general matter, unilaterally review those
uncontested aspects of the rejection‖).

OBVIOUSNESS
I. The Rejection of Claims 7, 9-12, 15, 16, 20-24, 26-28, 46, 53, and 54
over Resheski-Wedepohl
The Examiner’s position is that Resheski-Wedepohl taught a vaginal
cleanser comprising an alkyl polyglycoside and a pharmaceutically

2
Hui Liu et al., Interaction between chitosan and alkyl β-D-glucopyranoside
and its effect on their antimicrobial activity, 56 CARBOHYDRATE POLYMERS,
243-250 (2004).

3
US Patent No. 2,649,398 issued to John H. Wright, Aug. 18, 1953.

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acceptable carrier. (Ans. 5.) The Examiner found that Resheski-Wedepohl
disclosed Glucopon 600 as a suitable alkyl polyglycoside, which has a
structure that satisfies the structure set forth by the claimed invention. (Id.)
The Examiner also found that Resheski-Wedepohl taught that its
composition may optionally additionally comprise antimicrobial agents
and/or anti-inflammatory agents, and may be formulated as a douche. (Id.)
The Examiner found that Resheski-Wedepohl taught that microorganisms
such as Candida albicans and Trichomonas vaginalis are generally
associated with vaginitis, i.e., inflammation, or venereal disease, but did not
teach administering its cleanser into a vagina of a female who has an
infection caused by Candida albicans. (Id.)
According to the Examiner, it would have been obvious to a person of
ordinary skill in the art at the time the invention was made to have
administered the cleanser of Resheski-Wedepohl into the vagina of a female
who has an infection caused by Candida albicans ―since the cleanser would
be expected to clean the infected area as well as prevent further exacerbation
of inflammation via production of TSST-1
[4]
.‖ (Id. at 6.) The Examiner
found that an ―artisan would have also reasonably expected success in
treating the infection since the cleanser may also comprise active materials
such as antimicrobials, anti-parasitic agents, anti-pruritics, local anesthetics,
and anti-inflammatory agents.‖ (Id.) Further, the Examiner found that the
artisan would have reasonably expected that a composition comprising such
active materials would be able to treat inflammation caused by Candida
albicans. (Id.)

4
Toxic Shock Syndrome Toxin-1, a Staphylococcus aureus associated toxin
(Resheski-Wedepohl, col. 1, l. 57-62).
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Appellants contend that a skilled artisan would not be lead to use the
composition of Resheski-Wedepohl to treat a vaginal infection caused
Candida albicans by the reference teachings that (a) its composition may
comprise anti-inflammatory agents and (b) Candida albicans may be
responsible for inflammation. (App. Br. 4.) Appellants assert that at most a
skilled artisan would have been motivated to administer such anti-
inflammatory agents alone, i.e., without the alkyl polyglycoside of Resheski-
Wedepohl. (Id. at 5.) According to Appellants,
There would be no reason at all to administer the alkyl
polyglycoside of Resheski-Wedepohl et al. in conjunction with
the anti-inflammatory agents because this compound is said to
only have the effect of reducing the production of exoprotein
toxins by Gram positive bacteria – not in inhibiting and/or
killing Candida albicans (a yeast).

(Id.) Thus, Appellants assert that based upon the disclosure of Resheski-
Wedepohl, a skilled artisan would not have had a reasonable expectation of
successfully inhibiting and/or killing Candida albicans by administering the
composition of Resheski-Wedepohl. (Id.)
After considering the evidence and arguments, we conclude that the
Examiner has not made a prima facie case of obviousness. Specifically, for
the reasons discussed by Appellants, we agree that Resheski-Wedepohl did
not teach or suggest the claimed method for inhibiting and/or treating
infection caused by Candida albicans, comprising administering its
composition disclosed as useful for inhibiting the production of TSST-1 and
enterotoxins from bacteria. In particular, what is missing from the rejection
is a teaching or suggestion that the alkyl polyglycoside cleanser of Resheski-
Wedepohl would inhibit and/or treat a Candida albicans vaginal infection.
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That is, while Resheski-Wedepohl teach the use of the alkyl polyglycoside
cleanser in a patient population with S. aureus infection, there is no reason
given to necessarily apply the alkyl polyglycoside cleanser to a patient
population which has active Candida albicans vaginal infections. There is
also no reason given to demonstrate that these patient populations would
necessarily overlap.
Accordingly, we reverse the rejection of claims 7, 9-12, 15-16, 20-24,
26-28, 46, and 53-54 over Resheski-Wedepohl.
II. The Rejection of Claims 7, 9-12, 15-16, 20-24, and 26-28 over
Resheski-Wedepohl and Liu
In addition to the findings set forth above for Resheski-Wedepohl, the
Examiner additionally found that Liu taught that the nonionic surfactant,
alkyl β-D-glucopyranoside (AG) has antifungal activity. (Ans. 8.)
Specifically, the Examiner found that Liu taught that the AG Glucopon 600
inhibited Candida albicans in vitro. (Id.) According to the Examiner, it
would have been obvious to a person of ordinary skill in the art at the time
the invention was made to have used the composition of Resheski-Wedepohl
to inhibit or treat an infection caused by Candida albicans because that
composition comprised Glucopon 600 which Liu disclosed as having
antifungal activity against Candida albicans. (Id.)
Appellants contend, in the Reply Brief, that Liu teaches only that AG
is a relatively poor inhibitor of Candida albicans in comparison with
complexes formed between AG and chitosan. (Reply Br. 6.) According to
Appellants, ―one skilled in the art reading Liu, et al. would not be lead to
believe that the AG of Liu, et al. would be effective against Candida
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albicans, particularly when administered in vivo into the vagina of a
female.‖ (Id.)
We are not persuaded by Appellants’ contention. As the Examiner
correctly found, Liu disclosed that the AG Glucopon 600 showed biocidal
activity against Candida albicans. (Ans. 8; Liu 248.) Liu also disclosed that
the combination, i.e., ―dynamic association mixture‖ of chitosan, a natural
antimicrobial agent, and AG ―showed obviously stronger biocidal activity
than chitosan and AG, respectively.‖ (Liu 248.) However, we do not find
that this disclosure comparing AG alone with the dynamic association
mixture of AG and a known antimicrobial agent would have led a skilled
artisan away from using AG to inhibit a Candida albicans. Rather, Liu’s
disclosure merely provided an enhanced alternative for such activity without
criticizing, discrediting, or otherwise discouraging the use of AG to inhibit
Candida albicans. See In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
In addition, Appellants’ claim 21 does not exclude the administration of a
complex formed between AG and chitosan, but instead requires a treatment
composition comprising a nonionic alkyl glycoside, such as AG (see
Appellants’ claim 21). Accordingly, we affirm the rejection of independent
claim 21 over Resheski-Wedepohl and Liu. Appellants have not raised
separate arguments for the rejection of dependent claims 7, 9-12, 15-16, 20-
24, and 26-28over Resheski-Wedepohl and Liu. Accordingly, these claims
fall with claim 21. See 37 C.F.R. § 41.37(c)(1)(vii).
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8

SUMMARY
We reverse the rejection of claims 7, 9-12, 15-16, 20-24, 26-28, 46,
and 53-54 under 35 U.S.C. § 103(a) as unpatentable over Resheski-
Wedepohl;
we affirm the rejection of claims 7, 9-12, 20-23, and 26-28 under 35
U.S.C. § 103(a) as unpatentable over Resheski-Wedepohl and Liu;
we affirm the rejection of claims 15, 16 and 24 under 35 U.S.C. §
103(a) as unpatentable over Resheski-Wedepohl and Liu;
we affirm the rejection of claim 25 under 35 U.S.C. § 103(a) as
unpatentable over Resheski-Wedepohl and Wright
we affirm the rejection of claim 25 under 35 U.S.C. § 103(a) and as
unpatentable over Resheski-Wedepohl, Liu and Wright.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED-IN-PART

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