Appeal No. 2005-1452 Page 7
Application No. 09/915,549
Appellant argues that “the use of ‘comprising’ in claim 1 does not bring back
into the claim what is specifically excluded by the claim language. (Brief, p. 26).
Appellant’s argument is referring to the exclusion of solvents from the dispersion. We
agree that the subject matter excludes solvents from the claimed dispersion.
However, Kaufmann (Col. 4, ll. 31-33), like Davis (Col. 3 ll. 38-41), discloses that any
solvent used to dissolve the active ingredient should be removed. Thus, the resulting
dispersions are free from organic solvents.
Appellant argues that direct comparison based on the percentages of the drugs
disclosed by Kaufmann and the present invention is not possible. The Appellant
specifically states “[t]he solubility of each drug must be considered.” (Brief, p. 26).
However, Appellant then argues that the Kaufmann reference is working at the
maximum solubility because of the use of Cholesterol. (Brief, pp. 26-27). This
argument is not persuasive because Kaufmann utilizes Cholesterol for stabilizing the
emulsion. (Col. 3, ll. 48-60). Appellant has not presented evidence as to the solubility
of the taxol with and without Cholesterol in support of this argument. Further,
Appellant has not argued that the amount of active ingredient contained in the
dispersion of Kaufmann is not dissolved in a quantity that is greater than the quantity
which results additively from its maximum solubility in the oily and the aqueous phase
of the emulsion.
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