Appeal No. 2006-0728 Page 4
Application No. 10/198,714
hematologic toxicity,” the court concluded that “this language is only a statement of
purpose and intended result. The expression does not result in a manipulative
difference in the steps of the claims.” Id.
In this case as well, the preamble of claim 1 does nothing more than express the
purpose and intended result of the claimed method. It does not change the method
defined in the body of the claim, e.g., by changing the way the manipulative steps of the
method are carried out or the persons on whom the method is practiced. Therefore, it is
not a claim limitation. We interpret claim 1 to be directed to a method comprising
applying to the skin a composition in which a metal pyrithione is dispersed.
Claim 8 adds the limitations that the skin is contacted with water before the metal
pyrithione-containing composition, the excess metal pyrithione is rinsed off, and “the
extent to which the level of lipids in the skin has increased” is determined.
Claim 10 further limits claim 1 by requiring that 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.”
2. Anticipation
The examiner rejected claims 1-6, 8, and 9 under 35 U.S.C. § 102(b) as
anticipated by Ramachandran.1 The examiner noted that Ramachandran “discloses
shampoo compositions containing anionic, amphoteric surfactants and active agents
such as zinc pyrithione, climbazole, etc., for treating hair or scalp itch or irritation.”
Examiner’s Answer, page 3.
1 Ramachandran et al., U.S. Patent 5,834,409, issued November 10, 1998.
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