Appeal No. 2004-1212 Page 3
Application No. 09/316,624
Discussion
Claim 1, the broadest claim on appeal, is directed to a method for
ameliorating a symptom of rheumatoid arthritis comprising parenterally
administering “an effective symptom ameliorating amount of Product R in a range
from about 2.5 microliters to about 40 microliters per kilogram of body weight per
day.” The examiner rejected the claims as indefinite and anticipated.
1. Definiteness
The examiner rejected the claims under 35 U.S.C. § 112, second
paragraph, on the basis that “[t]he metes and bounds of the phrase ‘effective
symptom ameliorating amount’ in claims 1 and 4 are unclear.” Examiner’s
Answer, page 3.
Appellant argues that “[t]here is nothing unclear about the claim language
‘an effective symptom ameliorating amount of Product R in a range from about
2.5 microliters to about 40 microliters per kilogram of body weight per day’[;] . . .
Product R is a substance in liquid form made according to a specific process
described in the application.” Appeal Brief, page 9.
We agree with Appellant that the claims mean what they say: an
“effective symptom ameliorating amount” of Product R is a daily dosage of 2.5 to
40 µl per kilogram of the patient’s body weight. The specification defines Product
R as the product resulting from one of two described procedures, and the claims
require administration of defined quantities of that (liquid) product. The claim
language that the examiner objected to – “effective symptom ameliorating
amount” – is essentially duplicative of the quantities expressly recited in the
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