Appeal No. 1999-1280
Application No. 08/379,813
morphogenic protein.” It is appellants’ position (id.) that the transitional phrase
“consisting essentially of” precludes “the addition of an additional growth factor [that]
would materially affect the present claim, and that BMPs are recited as the sole growth
factor in the composition.”
According to appellants (id.):
The only method disclosed in Antoniades is administering a
polypeptide growth factor, such as platelet derived growth factor …
[wherein] BMP is taught only as an optional “differentiation factor”
which may be used in addition to the “polypeptide growth factor”….
[Therefore] Antoniades does not teach that use of a BMP without
being accompanied by treatment with … [a polypeptide growth
factor] is effective for periodontal tissue regeneration.
It is appellants’ position (Reply Brief, page 2) “that the claim language excludes
compositions in which PDGF or another growth factor is used as an active agent in
addition to BMPs. This interpretation of the claims is consistent with the established
meaning of the claim language ‘consisting essentially of’”.
We begin our review of this record with an analysis of the claims. Independent
claim 1 is directed to “[a] method for treatment ... consisting essentially of administering
to a site ... a pharmaceutically acceptable composition containing one or more purified
or recombinant bone morphogenetic protein (BMPs)....” Similarly, independent claim
12 is directed to “[a] method for treatment ... said method consisting essentially of
applying ... a pharmaceutically acceptable composition containing an effective amount
of one or more purified or recombinant bone morphogenetic protein (BMPs).…”
Independent claim 23 recites “[a] method for augmentation ... said method consisting
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