Appeal No. 95-2441
Application 07/987,211
have considered gemfibrozil, a material widely used as an
antihyperlipoproteinemic agent in treating humans (G-S, col.
1, l. 9-11), useful for treating the same or a similar malady
in ruminants. Moreover, we conclude that the bioactive
substances employed in appellant’s “particles suitable for
introduction of a bioactive substance to the post-rumen
portion of the digestive system of a ruminant” (Claim 1) are
limited to bioactive substances having recognized utility for
use in ruminants.
“Whether a preamble of intended purpose constitutes a
limitation to the claims is . . . determined on the facts in
each case in view of the claimed invention as a whole.” In re
Stencel, 828 F.2d 751, 754-55, 4 USPQ2d 1071, 1073 (Fed. Cir.
1987). Here, the “language is essential to particularly point
out the invention defined by the claims.” Compare In re
Bulloch,
604 F.2d 1362, 1365, 203 USPQ 171, 174 (CCPA 1979).
Accordingly, we are obliged to reverse the examiner’s finding
that the subject matter appellant claims is anticipated by the
water dispersible gemfibrozil compositions described by G-S.
Furthermore, we reverse the examiner’s holding that G-S’s
teaching of water dispersible gemfibrozil compositions for use
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