Appeal No. 2005-0410
Application No. 09/902,461
New Ground of Rejection
Under the provisions of 37 C.F.R. § 41.50(b), we enter the following new ground
of rejection.
Claim 22 is rejected under 35 U.S.C. § 102(b) as being anticipated by Fuller.
As indicated on page 2, above, claim 22 is directed to a pharmaceutical
composition comprising human acid "- glucosidase produced in CHO cells in a
container with a label having instructions as to how it is to be administered to a patient
having GSD II. We find no difference between the claimed composition and the human
acid "-glucosidase produced in CHO cells disclosed in Fuller. Neither placing of the
composition in a container, nor adding instructions for administration to the label, impart
any new properties on the composition. One cannot obtain a patent for a known
product simply by changing the label on the container in which it is placed. In re Ngai,
367 F.3d 1336, 1339, 70 USPQ2d 1862, 1864 (Fed. Cir. 2004)(“If we were to adopt
Ngai’s position, anyone could continue patenting a product indefinitely provided they
add a new instruction sheet to the product”). Accordingly, we find that the composition
taught by Fuller anticipates the pharmaceutical composition set forth in claim 22.
This decision contains a new ground of rejection pursuant to 37 CFR § 41.50(b)
(effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004), 1286 Off. Gaz.
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