Appeal No. 2001-1524 Page 4
Application No. 08/615,058
chemically-modified, stroma-free hemoglobin as is required by appellants’
claimed invention.
The examiner appears to agree with appellants’ position, finding (Answer,
page 8) that “Kramer increases cardiac output with a pharmaceutical
composition comprising sodium chloride/acetate.” However, the examiner
argues (id.) that while increasing cardiac output by the addition of hemoglobin is
not a goal of Kramer, the claims comprise the use of modified hemoglobin and
therefore is open to encompass the use of additional elements. We cannot
agree with the examiner’s position.
While we agree that the use of the transitional term comprising opens the
claim to include additional elements, appellants’ claimed invention specifically
requires that chemically-modified, stroma-free hemoglobin be administered in an
amount effective to increase cardiac output. As both appellants and the
examiner recognize, Kramer increases cardiac output with a pharmaceutical
composition comprising 50:50 mixtures of sodium acetate:sodium chloride. See
Kramer, column 5, lines 20-23. According to Kramer (column 5, lines 51-56),
stroma-free hemoglobin serves to increase the oxygen carrying capacity of
blood, not to enhance cardiac output. Therefore, in addition to the deficiency
noted by the examiner, a second deficiency in Kramer is the failure to recognize
the use of stroma-free hemoglobin to enhance cardiac output.
In this regard, appellants point out (Brief, pages 10-12), that neither
Fischer, Nguyen, nor Tye describes increased cardiac output as a result of the
administration of chemically modified stroma-free hemoglobin. We agree.
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