Appeal No. 2005-1152
Application No. 10/202,616
Rockwell Int’l Corp., 150 F.3d 1354, 1361, 47 USPQ2d 1516, 1522 (Fed. Cir. 1998). In
addition, “An inherent structure, composition or function is not necessarily known. . . .
Insufficient prior understanding of the inherent properties of a known composition does
not defeat a finding of anticipation.” Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342,
1349, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999).
Prior to discussion of the prior art, we must interpret claim 1 before us. Claim 1
recites a method for delivery via the pulmonary system comprising: administering to the
respiratory tract of a patient in need of treatment, prophylaxis or diagnosis an effective
amount of particles comprising: a bioactive agent in association with a charged lipid
wherein the charged lipid has an overall net positive charge, the agent has an overall
net negative charge upon association, the agent is not a nucleic acid and wherein
release of the agent is sustained. The specification, page 8, lines 19-23, states that the
“particles suitable for pulmonary delivery can comprise a therapeutic, prophylactic or
diagnostic agent which possesses an overall net negative charge in association with a
lipid which possesses an overall net positive charge” (emphasis added). Thus, we
interpret the phrase “the agent has an overall net negative charge
upon association” in claim 1 to mean that the bioactive agent has a negative charge.1
1 Note that the phrase “upon association” when read in context, that is with the
meaning set forth in the specification, does not mean when the bioactive agent is in
association with the charged lipid that the complex has an overall negative charge or
that the bioactive agent retains a negative charge.
3
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