Appeal No. 2006-0728 Page 2
Application No. 10/198,714
The specification states that “metal pyrithiones can act to increase the level of
lipids in the stratum corneum of the skin. It was not previously recognised that metal
pyrithiones had activity other than as antimicrobial agents when applied to the scalp or
to the skin in general.” Id.
Discussion
1. Claim construction
Claims 1-6 and 8-14 are pending and on appeal. Claims 1, 8, and 10 are
representative and read as follows:
1. A method of increasing the level of free, intercellular lipids which
occur naturally in the stratum corneum of the skin which comprises applying
to the skin a composition in which metal pyrithione is dispersed.
8. Method as claimed in Claim 1 which comprises the steps of
(a) contacting the skin with water;
(b) applying to the skin a metal pyrithione;
(c) rinsing excess metal pyrithione from the skin; and
(d) determining the extent to which the level of lipids in the skin has
increased.
10. A method as described in claim 1 wherein the metal pyrithione is in the
form of particles having a size distribution in which 90% of the particles have a size of
up to 100 microns.
The central issue in this appeal is whether the preamble of claim 1 distinguishes
the claimed method from the methods taught in the prior art. “[A] claim preamble has
the import that the claim as a whole suggests for it. In other words, when the claim
drafter chooses to use both the preamble and the body to define the subject matter of
the claimed invention, the invention so defined, and not some other, is the one the
patent protects.” Bell Commc’ns Research Inc. v. Vitalink Commc’ns Corp., 55 F.3d
615, 620, 34 USPQ2d 1816, 1820 (Fed. Cir. 1995).
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