Appeal No. 94-0591
Application 07/755,610
We interpret the phrase “said lipid phase consisting
essentially of a mixture of long-chain fatty acids” in Claim 1 to
close the lipid phase to other fatty acids and/or lipids which
“materially affect the basic and novel characteristics” of the
lipid phase of the claimed lipid emulsion. Atlas Powder Co. v.
E.I. du Pont de Nemours & Co., 750 F.2d 1569, 1574, 224 USPQ 409,
412 (Fed. Cir. 1984); In re Herz, 537 F.2d 549, 551, 190 USPQ
461, 463 (CCPA 1976); and In re Janakirama-Rao, 317 F.2d 951,
954, 137 USPQ 893, 896 (CCPA 1963). Appellant’s specification
describes the basic and novel characteristics of the lipid phase
of the claimed lipid emulsion as follows (Specification (Spec.),
pp. 2-3, bridging para.):
The present invention seeks to provide a
more balanced lipid emulsion having a lower content
of polyunsaturated fatty acids, which, while ensuring
that the essential fatty acid requirements are covered,
has the following advantages:
better utilization of the essential fatty acids
to form their higher derivatives, avoiding the risk of
inhibition of conversion of the fatty acids by excess
substrate,
smaller intake of polyunsaturated fatty acids,
enabling lipid peroxidation to be limited, in particular
in subjects suffering from inflammatory syndromes, with
the production of free radicals.
Based on the specification’s description of the basic and
novel characteristics of the lipid emulsion and the oils
appellant employs to formulate the lipid phase of his lipid
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