Appeal No. 2004-0974 Page 5
Application No. 10/117,169
Appellant argues that Craft does not anticipate because “Craft relates to a
cardiac care composition that requires DHEA [dehydroepiandrosterone] as a
necessary component for alleviating irregular heart beat and for lowering blood
pressure.” Appeal Brief, page 6. Appellant points out that the male gender-
specific formula disclosed by Craft also contains aspirin. Appellant argues that
”Craft’s teachings are contrary to the claimed invention. The invention does not
require DHEA or aspirin.” Id.
This argument is not persuasive. Instant claim 5 reads on compositions
that include the recited components and anything else. See, e.g., Scanner
Technologies Corp. v. ICOS Vision Systems Corp., 2004 WL 868404, at *6 (Fed.
Cir. April 23, 2004) (“The use of the transitional phrase ‘comprising’ itself
indicates that the elements or steps following the transition may be
supplemented by additional elements or steps and still fall within the scope of the
claim.”). Thus, the composition disclosed by Craft falls within the scope of instant
claim 5 and anticipates it.
Appellant also argues that “[t]he claimed composition is used for improving
fertility, which is a feature neither described, contemplated nor desired by the
Craft composition.” Appeal Brief, page 6.
This argument is also unpersuasive. Instant claim 5 is directed to a
composition, not a method of improving fertility. The fact that Appellant intends
the claimed composition to be used to improve male fertility does not distinguish
the claimed composition from the composition disclosed by Craft. Cf. Rowe v.
Dror, 112 F.3d 473, 478, 42 USPQ2d 1550, 1553 (Fed. Cir. 1997) (“[W]here a
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