Appeal No. 1995-4434
Application No. 07/988,023
merits panel of this Board evaluated the patentability of
appellant's aqueous peritoneal dialysis composition (Appeal No.
91-1972 mailed September 16, 1992). The previous Board panel
affirmed-in-part the examiner's decision rejecting claims 1
through 14 on prior art grounds. Silk was the sole reference
relied on in the previous appeal.
Instant claim 1 differs from claim 1 in the previous
appeal in view of the recitations "sterile and free from
pyrogens" and "said peritoneal dialysis composition having a
osmolality of about 265 to 378 mOsm/kg" added to the instant
claim. We have evaluated patentability anew in light of the
new claim language presented.
The claimed aqueous peritoneal dialysis composition is
"sterile and free from pyrogens." That recitation is a
positive limitation in the claim and, in our judgment, Silk
does not constitute sufficient evidence to support a conclusion
of obviousness of a claim containing that limitation. For the
reasons succinctly stated in appellant's main brief, pages 11
and 12, the examiner has not established that there is adequate
reason, suggestion, or motivation stemming from the cited prior
art which would have led a person having ordinary skill to
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