Appeal No. 2004-0974 Page 4
Application No. 10/117,169
Discussion
The claims are directed to compositions for promoting fertility in males,
comprising some or all of the components described in the specification as
having beneficial effects. The examiner rejected claims 5 and 11 as anticipated,
and rejected all of the claims as obvious in view of either of two combinations of
nine references.
We conclude that claims 1-4, 10, 11, and 15 are indefinite. Since we
cannot determine their scope, we vacate the prior art rejections of these claims,
and we will enter a new ground of rejection under 35 U.S.C. § 112, second
paragraph. First, however, we will address the prior art rejections as applied to
claims 5-9.
1. Anticipation
The examiner rejected claim 5 as anticipated by Craft. Claim 5 is directed
to an orally ingestible composition “having fertility promoting activity in males,”
comprising “effective amounts” of vitamins C and E, selenium, ferulic acid, zinc,
and “B vitamins”. We interpret the latter limitation to require at least two B
vitamins in the claimed composition.
The examiner pointed in particular to the embodiment described in Craft’s
claim 31. That claim describes a “nutritional supplement consisting essentially
of,” among other things, 5% to 2000% of the RDA of vitamins C and E; 5% to
500% of the RDA of selenium and zinc; 0.1-10 mg trans-ferulic acid; 0.5-25 mg
vitamin B6; and 2-50 mg vitamin B12. See column 10, lines 10-21. This
disclosure reasonably appears to meet all of the limitations of instant claim 5.
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