Appeal No. 95-2970
Application No. 07/995,106
With regard to claim 1, we note initially that the claim
is directed to a peritoneal dialysis solution comprising
specific proportions of polypeptide in combination with
specific proportions of dextrose. However, the claim does2
not contain any limiting language with regard to the molecular
weight of the polypeptide. It reasonably appears that the
polypeptide of this claim would "read on" the polypeptide of
Klein (note: In re Zletz, 893 F.2d 319, 13 USPQ2d 1320 (Fed.
Cir. 1989), and In re Prater, 415 F.2d 1393, 162 USPQ 541
(CCPA 1969)). The examiner should make the factual inquiries
necessary to determine whether the Klein disclosure, at column
12, lines 39-65, would have reasonably suggested the
combination of the polypeptide and dextrose in the claimed
proportions. In presenting his case before the Board, the
examiner did not rely on that portion of the reference.
With regard to claim 10, we note that the claim is
directed to a peritoneal dialysis solution which does not
require the ingredient dextrose. We note a number of
2We note The Merck Index, item 4353 (11th ed., Merck &
Co. 1989) as indicating that glucose and dextrose are the same
chemical compound. (Copy attached).
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