Appeal No. 2007-1138
Application No. 10/304,918
(Fed. Cir. [1984]), cert. denied, 469 U.S. 857 (1984)). Although no ‘litmus
test’ exists as to what effect should be accorded to words contained in a
preamble, review of a patent in its entirety should be made to determine
whether the inventors intended such language to represent an additional
structural limitation or mere introductory language.” In re Paulsen, 30 F.3d
1475, 1479, 31 USPQ2d 1671, 1673-74 (Fed. Cir. 1994).
In this case, our review of the specification indicates that the phrase
“orally administrable” is one that “breathes life and meaning into the claims
and, hence, is a necessary limitation to them.” Loctite Corp. v. Ultraseal
Ltd., 781 F.2d 861, 866, 228 USPQ 90, 92 (Fed. Cir. 1984). According to
the specification, the claimed medicament can be administered by any
effective route (Specification 6: 17-25). Oral administration is identified as
one such route (at 5: 12 to 6: 2). 24 specific oral formulations are listed in
the specification (6: 29 to 9: 24). These oral formulations are used to
determine the efficacy of the medicament in reducing triglycerides and
weight gain (11: 25 to 13: 27). Claims are interpreted in view of the
specification as they would be understood by one of skill in the art. In view
of the specification, we interpret the phrase “orally administrable” to mean
that the medicament is in a physical form which could be administered by
mouth.
PRIOR ART
Perricone teaches tocotrienol or tocotrienol-enriched vitamin E in “a
dermatologically acceptable carrier or vehicle” for topical application to the
skin to treat radiation skin burn (Col. 3, ll. 15-51). For example:
4
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