Appeal No. 2001-1177 Page 6
Application No. 08/781,868
instant claims. See Pitney Bowes Inc. v. Hewlett Packard Co., 182 F.3d 1298,
1305, 51 USPQ2d 1161, 1165-66 (Fed. Cir. 1999): “If . . . the body of the claim
fully and intrinsically sets forth the complete invention, including all of its
limitations, and the preamble offers no distinct definition of any of the claimed
invention’s limitations, but rather merely states, for example, the purpose or
intended use of the invention, then the preamble is of no significance to claim
construction.”
Appellant has presented no evidence that a composition comprising a
topical carrier and, e.g., 0.03% glutathione and 0.03% selenomethionine, when
used to enhance repair of skin following chemosurgery or laser therapy, would
differ from the same composition when used to protect skin from x-ray induced
damage. In this regard, we note that both the patent and the instant application
disclose exemplary “reparative cream” compositions that contain apparently
identical ingredients. See Hersh, column 13, line 50 to column 14, line 26, and
the instant specification, pages 38-40.
2. Anticipation
The examiner also rejected all of the instant claims as anticipated by
Hersh. The examiner characterized Hersh as disclosing the same compositions
as are presently claimed, as well as a method of using such compositions to treat
the skin. See the Examiner’s Answer, page 4.
“Under 35 U.S.C. § 102, every limitation of a claim must identically appear
in a single prior art reference for it to anticipate the claim.” Gechter v. Davidson,
116 F.3d 1454, 1457, 43 USPQ2d 1030, 1032 (Fed. Cir. 1997). “[E]very
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