Appeal No. 2006-0729 Page 6
Application No. 10/322,566
Anticipation:
Claims 12 and 18 stand rejected under 35 U.S.C. § 102(b) as anticipated
by Hong. According to the examiner (Answer, page 4), appellant’s specification
uses the term “active ingredients (agents)’ and ‘additive” interchangeably,
therefore the examiner construes the term “active ingredient” as set forth in
appellant’s claimed invention to mean an “additive.” With this construction of
appellant’s claimed invention, the examiner finds (id.), Hong “teach a composition
comprising a mixture of ethyl linoleate and triethyl citrate with excipients as
additives.”
As we understand it, Hong discloses a “cyclosporin-containing
microemulsion preconcentrate composition.” Column 5, lines 22-23. According
to Hong (column 5, lines 22-26), the composition comprisies (1) cyclosporin as
an active ingredient; (2) alkyl ester of polycarboxylic acid and/or carboxylic acid
ester of polyols as a lipophilic solvent; (3) oil; and (4) surfactant.” Hong lists
triethyl citrate as an example of an alkyl ester of polycarboxylic acid. See Hong,
column 6, lines 1-3. In addition, Hong lists ethyl linoleate as an example of an
oil. See Hong, column 7, lines 59-62.
“Under 35 U.S.C. § 102, every limitation of a claim must identically appear
in a single prior art reference for it to anticipate the claim.” Gechter v. Davidson,
116 F.3d 1454, 1457, 43 USPQ2d 1030, 1032 (Fed. Cir. 1997). “Every element
of the claimed invention must be literally present, arranged as in the claim.”
Richardson v. Suzuki Motor Co., Ltd., 868 F.2d 1226, 1236, 9 USPQ2d 1913,
1920 (Fed. Cir. 1989). In this regard, we note that the only disclosure in Hong,
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