to be made. However, nothing has been called to our attention
which would demonstrate that the "immediate release layer" of
claim 1 differs from Conte's first layer or that the "sustained
release layer" of claim 1 differs from Conte's second layer.
A fourth argument is that Conte also describes the use of a
third layer and that applicant does not require Conte's third
layer. The problem with applicant's argument is that its claimed
formulation "comprises" a first and second layer. Accordingly,
applicant's claim 1 does not exclude the presence of a third
layer, such as Conte's third layer. Moleculon Research Corp. v.
CBS, Inc., 793 F.2d 1261, 1271, 229 USPQ 805, 812 (Fed. Cir.
1986) (phrase "comprising" is a term of art which does not
exclude additional unrecited elements); In re Baxter, 656 F.2d
679, 686, 210 USPQ 795, 802 (CCPA 1981) ("comprising" leaves
claim open to the inclusion of any and all additional steps).
C. Order
Upon consideration of the appeal, and for the reasons given,
it is
ORDERED that the examiner's rejection of claims 1 and
11-12 as being unpatentable under 35 U.S.C. § 103(a) over Dempski
and Conte is affirmed.
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