Appeal No. 2005-1746 Page 2
Application No. 09/963,738
21. The dry direct tableting base material as claimed in claim 1 wherein
said low-substituted hydroxypropyl cellulose is in fibrous form.
The examiner relies upon the following references:
Koyanagi et al. (Koyanagi) 3,852,421 Dec. 03,1974
Obara 6,380,381 Apr. 30, 2002
Shimizu et al. (Shimizu) WO 98/53798 Dec. 03,1998
Clams 1-20 stand rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Shimizu and Koyanagi. In addition, claim 21 stand
rejected under 35 U.S.C. § 103(a) as being obvious over the previous
combination as further combined with Obara. After careful review of the record
and consideration of the issues before us, we affirm.
DISCUSSION
Clams 1-20 stand rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Shimizu and Koyanagi. As claims 1-20 stand or fall
together, see Appeal Brief, page 3, we focus our analysis on the broadest claim,
claim 1.
The first step in deciding patentability issues under 35 U.S. C. § 103 is
determining what is being claimed. See Key Pharmaceuticals v. Hercon
Laboratories Corp., 161 F.3d 709, 714, 48 USPQ2d 1911, 1915 (Fed. Cir. 1998).
The preamble of claim 1 states that the composition is “[a] dry direct tableting
base material.” “If the claim preamble, when read in the context of the entire
claim, recites limitations of the claim, or, if the claim preamble is ‘necessary to
give life, meaning, and vitality’ to the claim, then the claim preamble should be
construed as if in the balance of the claim.” Pitney Bowes Inc. v. Hewlett
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