Appeal No. 2004-1391 Page 5
Application No. 09/811,654
HDL levels – raising HDL is the effect that “promot[es] cardiovascular health” as
recited in the preamble.
Nor does the preamble’s recitation of “a mammal in need of such
treatment” limit the mammal on whom the method is carried out. The
specification makes clear that “low levels of HDL are a risk factor in
cardiovascular health, as HDLs serve to sweep artery clogging cholesterol from
the bloodstream.” Page 1. Nowhere does the specification suggest that the
claimed method can or should be carried out only on patients who have a lower-
than-normal level of HDL.
The specification does not state, for example, that high levels of HDL are
harmful or that treatment with tagatose would be contraindicated if the patient’s
HDL level was above a specified level. Thus, the claim is most reasonably
interpreted to read on administration of tagatose even to healthy individuals,
since even those individuals would benefit from increased “HDLs serv[ing] to
sweep artery clogging cholesterol from the bloodstream.”
Thus, we interpret claim 1 to read on administration of tagatose to a
mammal, at a dosage that can be, e.g., 50-1500 mg/kg body weight/day. This is
the broadest reasonable interpretation of the claim consistent with the
specification. See, e.g., In re Sneed, 710 F.2d 1544,1548, 218 USPQ 385, 388
(Fed. Cir. 1983).
So interpreted, claim 1 is anticipated by Zehner. Zehner discloses
administration of tagatose to rats at a dosage of 1 g/kg body weight (i.e., 1000
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