Appeal No. 2006-1878 Page 5
Application No. 10/435,367
scope of the claim. See Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough
Corp., 320 F.3d 1339, 1345, 65 USPQ2d 1961, 1965 (Fed. Cir. 2003); Rowe v. Dror,
112 F.3d 473, 478, 42 USPQ2d 1550, 1553 (Fed. Cir. 1997). If the body of the claim
“sets out the complete invention” and does not recite essential structure that is
important to the invention or necessary to give meaning to the claim, the preamble is
not ordinarily treated as limiting the scope of the claim. Schumer v. Lab. Computer Sys.,
Inc., 308 F.3d 1304, 1310, 64 USPQ2d 1832, 1837 (Fed. Cir. 2002); NTP, Inc. v.
Research In Motion, Ltd., 418 F.3d 1282, 1305-06, 75 USPQ2d 1763, 1781
(Fed. Cir. 2005). Thus, we decline to interpret the preamble to require that the
supplement is actually effective for this purpose.
Obviousness under § 103
McKeown and Howes
Claims 1, 2, 4, 11-21, 25-36, 41, 42, 44, 45, 47-51, 53-58, 60, and 61 stand
rejected under 35 U.S.C. § 103 as obvious over McKeown1 in view of Howes2.
According to the Examiner, McKeown teaches a feed supplement containing
glutamine, triglyceride, and fiber. Office action dated May 6, 2004, page 3; Answer,
page 8, lines 10-11. This disclosure is stated to meet the limitations of claim 1, but not
the requirement that it contain a nutricine “which absorbs and eliminates mycotoxins
and/or pathogens in the digestive tract.” However, “Applicants admit in their
Specification that Mycosorb and Biomos are known nutricines that are administered to
1 McKeown et al. (McKeown), U.S. Pat. No. 5,660,852, issued Aug. 26, 1997
2 Howes et al. (Howes), U.S. Pat. No. 6,045,834, issued Apr. 4, 2000
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