Appeal No. 2006-2213 Page 9
Application No. 09/771,151
specification (page 8, lines 13-14) as being a size suitable for maintaining
supersaturated solutions. (“Typically, liposomes having a size of between 60-1,000 nm
are suitable, preferably a size of between about 70-500 nm.”)
Appellants’ Example 1 (Specification, pages 22-24), which reads identically to
Abra’s Example 3 (pages 21-23), provides additional evidence that Abra selected
liposomes of a size that does not contain precipitated compound. Specifically, Abra
produced (page 12, lines 4-21) liposomes containing the same concentration of cisplatin
present in liposomes prepared according to Appellants’ Example 1, 8.5 mg/ml
(Specification, page 24, lines 9-10). Abra used precisely the same steps used in
Appellants’ Example 1, and the resulting liposomes had a size range explicitly disclosed
in Appellants’ specification (page 8, lines 13-14) as being capable of maintaining a
supersaturated solution without precipitation of the dissolved compound.
In our view these facts demonstrate, based on a preponderance of the evidence,
that Abra selected liposomes of a size corresponding to liposomes having no
precipitated compound therein. While Abra does not state that the selection was “based
on said analyzing,” as recited in claims 1 and 16, Abra performed a process step
outwardly identical to that recited in claims. Therefore, in our view, Abra meets the
claim limitation requiring the selection of liposomes having a size corresponding to
liposomes having no entrapped precipitated compound.
Based on the evidence before us, it is reasonable to conclude that the 100-120
nm liposomes prepared as described on page 12 and Example 3 of Abra would not
have contained precipitated cisplatin. As discussed above, the liposomes ranging in
size from 100-120 nm disclosed by Abra at page 12 are within a size range disclosed in
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007