Appeal No. 2007-0055 Page 3
Application No. 10/053,299
A) from about 0.001 to about 99% by weight of an amino acid component
selected from the group consisting of at least one of the following: L(+)
isoleucine, DL-isoleucine, D(-)-allo-isoleucine, L(+)-allo-isoleucine, and active
analogs of isoleucine;
B) at least one additional pharmacologically active substance selected from the
group consisting of a fluoride, xylitol, an antibody, an anti-microbial agent, zinc
ions, a decongestant, an anesthetic, an anti-oxidant, a vitamin, a microbial
substance, a pre-biotic material, folic acid, echinacea, peppermint oil or extract,
menthol, quassia, bistort, ginger, angelica, bayberry, chamomile, fish oil, or
fractionated fish oil, a fatty acid, fiber, flaxseed, a plant extract, garlic or garlic
extract, calcium, stannol esters, lutein, zeaxanthin, cryptoxanthin, isolflavone, an
anti-inflammatory compound, an antifungal agent, and a food product; and
optionally,
C) pharmacologically acceptable carrier materials and/or excipients.
Claim 1 requires that the “amino acid component” is “selected from the group
consisting of” isoleucine stereoisomers and active analogs of isoleucine. “Transitional
phrases, such as ‘comprising,’ ‘consisting of,’ and ‘consisting essentially of,’ are terms
of art in patent law that ‘define the scope of the claim with respect to what unrecited
additional components or steps, if any, are excluded from the scope of the claim.’
MPEP §2111.03; accord Vehicular Techs. Corp., 212 F.3d at 1382-83. The phrase
‘consisting of’ signifies restriction and exclusion of unrecited steps or components.
MPEP §2111.03.” Conoco Inc. v. Energy & Environmental International LC, 460 F.3d
1349, 1360, 79 USPQ2d 1801, 1808-09 (Fed. Cir. 2006). Here, the phrase “consisting
of” refers to the members of the group which define the amino acid component.
Accordingly, we construe “consisting of” to limit the amino acid component to only those
compounds specifically recited in the group (i.e., isoleucines), and to exclude the
presence of other amino acid components. This construction applies to claims 11, 18,
and 32 in which the phrase is also recited.
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