Appeal No. 2005-1164 Page 12
Application No. 09/721,131
of claim 22 under 35 U.S.C. § 101 and 35 U.S.C. § 112, first paragraph10. As
discussed supra claims 23-27 and 29-42 fall together with claim 22.
Claim 28
As discussed above, we interpret the phrase “up to about 20%” as it
appears in claim 28 to include 0%. Therefore, as we understand it, claim 28
further limits claim 22 by requiring that the sodium chloride formulation is a
mixture with a form of potassium in a weight ratio amount of Na:K up to about
1:1.
Appellant relies on a number of “research studies”11, which according to
appellant “report a correlation between a decrease in the ability to inhibit HIV and
the presence in HIV infected persons of nutrient deficiency for many of the
nutrients … that appellant has recited in his dependent claim 28.” However,
appellant admits (Brief, page 11), “[t]he research studies do not address the
nutrients, sodium chloride and potassium….” Accordingly, the “research studies”
relied upon by appellant do not address the requirements of claim 28, which, as
we understand it, further limits claim 22 by requiring that the sodium chloride
formulation is a mixture with a form of potassium in a weight ratio amount of Na:K
up to about 1:1. Therefore, in our opinion the “research studies” fail to support
appellant’s claimed invention.
10 In re Brana, 51 F.3d 1560, 1564, 34 USPQ2d 1436, 1439 (Fed. Cir. 1995) (“Obviously, if a
claimed invention does not have utility, the specification cannot enable one to use it.”).
11 The examiner attached as Exhibit B of the Answer, “[a] copy of the research studies submitted
by [a]ppellant, with references 1-6, [and] 10-19 redacted.” Answer, page 10. According to the
examiner (Answer, page 9), “[a]ppellant has withdrawn references 1-6 [and] 10-19 as being
published after the November 22, 2000 filing date of the application….”
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