Appeal No. 1999-1280
Application No. 08/379,813
essentially of applying ... a pharmaceutically acceptable composition containing an
effective amount of one or more purified or recombinant bone morphogenetic protein
(BMPs)….”
In each of the independent claims, the recitation “consisting essentially of” refers
to an administering or applying step. The material administered or applied is a
composition described using an open term, “containing”. See e.g. Loukomsky v.
Gerlich, 264 F. 2d 907, 908, 121 USPQ 213, 214 (CCPA 1959) (“[a] solution
‘containing’ a specified ingredient does not cease to contain it merely because other
ingredients are added.”). The open scope of the composition is emphasized in
dependent claims 2-6, 13-17, 24-28, “the composition comprises …” and claims 7-9,
18-20, 29-31, “the carrier comprises.…”
Therefore, the appealed claims require treatment to “consist essentially of”
administering a composition. The claims, however, do not limit the scope of ingredients
in the composition. In this regard, we note that appellants affirmatively state (Brief,
page 4) “that the claimed method ‘consists essentially of’ administering … a
composition comprising an effective amount of a bone morphogenetic protein.”
Therefore we are not persuaded by appellants’ argument. The claimed method utilizes
a composition comprising BMPs as a result the composition is open to include BMPs
and other agents. We note Antoniades (column 2, lines 21-33) teach “In preferred
embodiments, the step of applying includes applying a combination of a polypeptide
growth factor and a differentiation factor … most preferably the polypeptide growth
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