Appeal 2007-2834
Application 09/943,048
One of ordinary skill reading the cited prior art as a whole would have
reasoned from these teachings that obtaining a therapeutic effect from the
ingredients recited in claim 18 would have required at least four ingredients
in addition to those recited in the claim -- Langhoff’s cod liver/linseed oil,
vitamin C, and vitamin E, and Shapiro’s benzoic acid derivative. As noted
above, both the cod liver/linseed oil and benzoic acid derivatives are
administered in multi-gram quantities to achieve a therapeutic effect.
We note that, because claim 18 uses the term “comprising” to describe
the composition, the composition may contain the additional ingredients
recited in the prior art compositions. See Genentech, Inc. v. Chiron Corp.,
112 F.3d 495, 501 (Fed. Cir. 1997) (“‘Comprising’ is a term of art used in
claim language which means that the named elements are essential, but other
elements may be added and still form a construct within the scope of the
claim.”).
However, in the instant case, claim 18 requires all of the ingredients to
be present in a single composition. As noted above, at least two of the
ingredients taught in the art to be required for an anti-inflammatory effect,
cod liver/linseed oil and para-amino benzoic acid, should be administered in
multi-gram quantities. The Examiner has not adequately explained why one
of ordinary skill would have included all of the different ingredients required
in the prior art compositions, in the quantities disclosed in the prior art, in a
single composition as recited in claim 18. We therefore do not agree with
the Examiner that one of ordinary skill viewing the cited references would
have considered the composition recited in claim 18 obvious.
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