Appeal No. 2003-0631
Application No. 09/580,232
membranes, and does not teach or suggest a main compartment and a
sub-compartment that are independent of each other. Brief, pages
8-10. Appellant further argues that Faour does not describe the
delivery systems of the instant claims on appeal. Brief, pages
10-11.
The critical issue before us is whether the examiner is
correct in concluding that Faour’s coating layer (8) is the same
as appellant’s membrane (1). Answer, page 4. We find that the
examiner is incorrect for the following reasons.
We note that during patent examination, the pending claims
must be interpreted as broadly as their terms reasonably allow.
In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed.Cir.
1989). In determining the patentability of claims, the PTO gives
claim language its “broadest reasonable interpretation”
consistent with the specification and claims. In re Morris, 127
F.3d 1048, 1054, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997) (citations
omitted).
In the instant case, claim 1 recites “[a] main compartment
confined by a pharmaceutically acceptable membrane”. The word
“membrane” is defined as “a thin soft pliable sheet or layer esp.
of animal or plant origin”. See Merriam-Webster’s Collegiate
Dictionary, 10th Edition (2000), pg. 723. Appellant’s
specification, on page 4, also sets forth examples of suitable
membranes. The examiner fails to adequately explain how Faour’s
coating (8), which is described in Faour’s Abstract as “a final
finish coat”, can be a membrane. We have carefully reviewed the
entire disclosure of Faour and also cannot find how final finish
coat (8) can be a membrane. Because of this failing made by the
examiner, we agree with appellant’s arguments, and determine that
the examiner has not set forth a prima facie case of anticipation
or obviousness.
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