Appeal No. 1998-0350
Application No. 08/453,937
(“VIIa”), activated factor X (“Xa”), Ca2+, and tissue factor (“TF”), together with
either or both of antithrombin IIIa and heparin. See the legend to Figure 3. The
composition containing heparin but not antithrombin therefore is “essentially free”
of antithrombin, as required by the claim; the question is whether the disclosed
composition “consists essentially of” LACI and heparin.
“By using the term ‘consisting essentially of,’ the drafter signals that the
invention necessarily includes the listed ingredients and is open to unlisted
ingredients that do not materially affect the basic and novel properties of the
invention.” PPG Indus. Inc. v. Guardian Indus. Corp., 156 F.3d 1351, 1354,
48 USPQ2d 1351, 1353-54 (Fed. Cir. 1998).
Thus, the composition of claim 1 is open to the inclusion of other
ingredients that do not “materially affect the basic and novel properties” of the
composition. One of the “basic and novel properties” of the claimed composition
is recited in the claim itself: “provid[ing] a synergistic anticoagulation effect upon
administration to a warm-blooded mammal.”
The composition disclosed by Broze contains the clotting factors VIIa, Xa,
and tissue factor, which carry out enzymatic reactions that cause blood to
coagulate. See the specification, page 1:
[T]he extrinsic pathway is initiated when plasma factor VII/VIIa binds
to tissue factor (TF; thromboplastin) to form a complex which
proteolytically activates factors IX and X. Once factor Xa is formed,
. . . it can . . . form the prothrombinase complex which converts
prothrombin to thrombin. Ultimately, thrombin causes the fibrin clot
to form.
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