Appeal 2007-1082
Application 10/327,383
1 (ii) optionally particles of one or more
2 pharmaceutically acceptable excipients,1 and
3 (iii) non-dihydrate azithromycin particles
4 to form wet granules, wherein the wet granules comprise non-
5 dihydrate azithromycin and the non-aqueous granulating liquid;
6 and
7 b) drying the wet granules to remove the non-aqueous
8 granulating liquid and thereby form non-dihydrate azithromycin
9 granules;
10 wherein said non-dihydrate azithromycin is selected from
11 the group consisting of substantially pure azithromycin
12 monohydrate hemi-ethanol solvate and azithromycin
13 sesquihydrate.
14
15 Claim 15 is representative of the composition claims on appeal.
16 Claim 15 reads:
17 A granule comprising non-dihydrate azithromycin and
18 optionally, one or more excipients2 wherein said granule is
1 Normally in assessing the scope of a claim, every limitation in a claim
should be given some meaning. However, limitation a) (ii) adds absolutely
nothing to define the scope of the claim. A method “comprising” (1) steps
a) (i) and a) (iii) and (2) b) has precisely the same scope as a method
including step a) (ii) due to the language “optionally” in step a) (ii) and the
transition phrase “comprising” which appears after the preamble. We would
recommend that step a) (ii) be deleted from claim 1 and be made the subject
of a claim depending from claim 1 in which limitation a) (ii) appears in the
dependent claim.
8
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