Appeal No. 2004-1391 Page 4
Application No. 09/811,654
2. Prior art
The examiner rejected claims 1-6 “under 35 U.S.C. 102(b) as anticipated
by or, in the alternative, under 35 U.S.C. 103(a) as obvious over[,] Zehner.”
Examiner’s Answer, page 4. The examiner noted that Zehner discloses
administration of D-tagatose to mammals at a dosage of 1 g/kg body weight. Id.
(citing column 2, lines 45-60).
We agree with the examiner that Zehner anticipates claim 1.1 Claim 1 is
directed to a “method for promoting cardiovascular health in a mammal in need
of such treatment comprising administering to said mammal an efficacious
amount of tagatose to raise the HDL level in the mammal.”
We begin by construing the claim. The body of the claim recites a single
manipulative step: administering to a mammal an amount of tagatose effective to
raise its HDL level. An effective dose is, e.g., 50-1500 mg/kg body weight/day.
Specification, page 2.
The preamble of the claim may or may not add limitations on the claimed
method. See [case re preambles]. The preamble recites that the method is “for
promoting cardiovascular health” and is carried out on “a mammal in need of
such treatment.” We conclude that neither of these clauses limits the scope of
the method defined in the body of the claim. The preamble’s recitation of a
method “for promoting cardiovascular health” adds nothing to the recitation in the
body of the claim that the tagatose is administered in an amount effective to raise
1 Claims 1-6 stand or fall together. Appeal Brief, page 3. We will consider claim 1 as
representative. Claims 2-6 will stand or fall with claim 1.
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