Appeal No. 2006-2587 Page 3
Application No. 09/879,710
different reason in the reference, it would have been inherent to the process of
Meisner that nitric oxide synthesis is inhibited since the steps of the processes
(Meisner and the instant application) are the same.”
In response, appellants point out that the claims on appeal use the
transitional phrase “consisting essentially of.” Brief, page 4. In this regard, we
note, “‘[c]onsisting essentially of’ is a transition phrase commonly used to signal a
partially open claim in a patent. . . . By using the term ‘consisting essentially of,’
the drafter signals that the invention necessarily includes the listed ingredients
and is open to unlisted ingredients that do not materially affect the basic and
novel properties of the invention.” PPG Indus. Inc. v. Guardian Indus. Corp,
156 F.3d 1351, 1354, 48 USPQ2d 1351, 1353-54 (Fed. Cir. 1998).
According to appellants (Brief, page 4), Meisner’s composition requires
four ingredients, one of which is “a precursor or stimulant of epinephrine or nor-
epinephrine production selected from tyrosine, and phenylalanine. . . .” In this
regard appellants point out (Brief, page 5),
At the time of filing of the present application, current
treatments options for hypotension or septic shock have been
limited to vasoconstricting agents that have many deleterious side
effects that limit their therapeutic usage. (Spec. p. 2, lines 11-16).
Therefore, a primary goal of the present invention was the
development of effective pharmacological treatments to counteract
hypotension and shock without the deleterious side effects
associated with the use of vasoconstricting agents. (Spec. p. 2,
lines 11-19).
According to appellants (Brief, page 6, emphasis removed),” “[e]phinephrine and
norepinephrine are well known . . . potent vasocinstricting agents.” Accordingly,
appellants assert that adding a precursor or stimulant of epinephrine or
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