Appeal No. 2006-0872 Page 5
Application No. 09/899,704
Appellants’ arguments are not found to be convincing, as claim 11 is not
limited to the administration of vitamin C alone. Claim 11 (emphasis added) is
drawn to “[a] method of recovering cellular functions following injury in an
individual in need of treatment, comprising the steps of[ ] administering a
therapeutically effective amount of ascorbic acid or a salt of ascorbic acid to said
individual.” The use of the transitional term “comprising” does not exclude the
administration of additional therapeutic ingredients. See, e.g., Genentech, Inc. v.
Chiron Corp., 112 F.3d 495, 501, 42 USPQ2d 1608, 1613 (Fed. Cir. 1997)
(noting that “comprising” is a term of art used in claim language which means
that the named elements are essential, but other elements may be added and
still be within the scope of the claim).
Appellants argue further that “there is no suggestion or motivation to
modify any of the cited references to use L-ascorbic acid phosphate alone to
recover mitochondrial function, Na+-K+-ATPase protein expression, Na+-K+-
ATPase protein activity, and active Na+ transport as claimed herein.” Appeal
Brief, page 9. Finally, appellants argue that “[o]ne of ordinary skill in the art
would readily recognize that the cellular functions disclosed in Fahim . . . are
different and distinct from those claimed in the present invention, and these
different cellular functions may very well involve different cellular pathways.”
Appeal Brief, page 10.
Again, appellants’ arguments are not found to be convincing. As noted
above, claim 11 is drawn to “[a] method of recovering cellular functions following
injury in an individual in need of treatment, comprising the steps of[ ]
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007