Appeal No. 1998-2088
Application 08/372,712
Claims 17-21 stand rejected under 35 U.S.C. § 112, second paragraph as
being indefinite.
We reverse.
DISCUSSION
Claim Construction
Considering the phrase “patient in need thereof” which was found to be
indefinite by the Examiner, we are mindful that:
the definiteness of the language employed [in a claim] must be analyzed--not
in a vacuum, but always in light of the teachings of the prior art and of the
particular application disclosure as it would be interpreted by one
possessing the ordinary level of skill in the pertinent art.
In re Moore, 439 F.2d 1232, 1235, 169 USPQ 236, 238 (CCPA 1971) (footnote
omitted).
The present specification provides guidance as to who is encompassed by the
phrase “patient in need thereof”:
As used herein, the term “patient” refers to a warm-blooded animal
such as a mammal which is suffering from, or is in danger of suffering from
an acute or chronic inflammation, cellular injury or cell death associated with
an immunological based disease. It is understood that humans, mice and
rats are included within the scope of the term “patient.”
More specifically, administration of a compound of formulas (I), (II) or (III) to a
patient results in inhibition of TNF-a activity in the patient which selectively
inhibits TNF-a-mediated inflammatory events….
because it did not comply with 37 CFR § 1.116.
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