Appeal No. 1996-1783
Application No. 08/195,025
“The legal standard for definiteness is whether a claim
reasonably apprises those of skill in the art of its scope.”
In re Warmerdam, 33 F.3d 1354, 1361, 31 USPQ2d 1754, 1759
(Fed. Cir. 1994). Claim 20 on appeal now clearly sets forth
that the fatty phase is in addition to the lipidic phase. The
examiner has not submitted, on this record, any evidence or
argument that one of ordinary skill in the art would not be
apprised of the scope of claim 20 on appeal. Accordingly, the
examiner’s rejection of claims 20-25 under the second
paragraph of 35 U.S.C. § 112 is reversed.
B. The Rejection under § 103
The examiner and appellants agree that the primary
references, Meybeck, Fujiwara, and Handjani, teach
compositions containing vesicles but fail to teach
stabilization of vesicles by use of the agents recited in
claim 20 on appeal (Answer, page 5, and Brief, page 14).
Similarly, the examiner and appellants agree that the
alternative secondary references, Tin and/or Popescu, disclose
the problem of stability in vesicle formation but add
stabilizing agents which do not include those recited in claim
20 on appeal (Answer, pages 5 and 7, Brief, page 16).
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