Appeal No. 2005-1150
Application No. 09/953,450
patient parameters relating to diabetes.” Brief, p. 9; Reply Brief, p. 5. We find these
arguments unpersuasive.
First, as discussed above, Delhaye discloses treating patients having insulin
dependent diabetes. Since the specification defines diabetes mellitus Type I as being
insulin dependent diabetes, absent evidence to the contrary, we find that the publication
teaches the method described in representative claim 1.
Second, it is immaterial that the patients treated in Delhaye also had an exocrine
pancreatic insufficiency. We point out that claim 1 does not exclude the presence of
additional diseases or disorders. To that end, attention is directed to dependent claim 7
which is directed to a method of treating patients having both Type I diabetes and
exocrine pancreatic insufficiency.3 Since claim 7 is dependent on claim 1, it further
limits claim 1. 37 C.F.R. § 1.75(c).4 Therefore, claim 1 manifestly encompasses the
treatment of Type I diabetes patients suffering from exocrine pancreatic insufficiency as
described in Delhaye.
3 Claim 7 reads as follows:
7. A method according to claim 1, wherein said larger mammal or human
is a patient suffering from diabetes mellitus accompanied by exocrine
pancreatic insufficiency.
4 37 C.F.R. § 1.75(c) states, in relevant part, that:
(c) One or more claims may be presented in dependent form, referring
back to and further limiting another claims or claims in the same
application. . . . Claims in dependent form shall be construed to include al
the limitations of the claim incorporated by reference into the dependent
claim.
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