Interference No. 105,174 Paper 86
Henkel v. P&G Page 10
dissolves” (id., p. 16, l. 22 - p. 17, l. 1 and p. 18, ll. 5-7); and, (3) that “dissolution rate”
in Henkel’s claims are measured on a percent of the surface basis (id., p. 17, ll. 8-10
and p. 18, ll. 12-14). Henkel’s claims, when so interpreted, P&G argues, would not
teach or suggest measuring dissolution rate “on a weight/time basis, of equal weights of
a one region compared to a second region (separately from the tablet as a whole) ...”
said to be required by P&G’s claims (id., p. 16, ll. 17-20 and p. 17, ll. 20-21). We note
that the use of weight/time basis and the use of equal weights of the materials
separately from the tablet as a whole are not expressly stated in P&G’s claims, but
apparently are implicit in the claim limitation “on a weight by weight basis, measured
using a SOTAX dissolution method.”
In support of its argument, P&G relies on the testimony of Dr. William M.
Scheper, Ph.D. (Ex 1021). Dr. Scheper testifies that it is his opinion that there are a
number of ways one skilled in the art would consider the phrase “dissolution rate” based
on Henkel’s specifications. First, the phrase can be considered as referring to
the dissolution rate of one region of the tablet as compared to the dissolution rate of the
tablet as a whole (id., ¶ 10 and ¶ 11). Dr. Scheper also refers to the Barford patent (Ex
2005) as showing that the phrase “rate of dissolution” is used in the Henkel applications
in a manner analogous to its use in the Barford patent and refers to the effect of the
compressed portion on the rate of dissolution of the tablet as a whole (Ex 1021, ¶ 12).
Dr. Scheper also testifies that, alternatively, the Henkel limitation could refer to
measuring the total dissolution rate of one region and comparing it to the total time of a
second region as the tablet as a whole dissolves (id., ¶ 10 and ¶ 11). Dr. Scheper
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