Appeal 2006-2897
Application 10/074,715
ANALYSIS
The ultimate question before us is whether Appellants’ claimed
preserving composition, “consisting essentially of” a chelating agent and a
cell lysing agent and “being capable of preserving thyroid stimulating
hormone,” would have been obvious in view of Steaffens’ stabilizing
composition comprising these two agents and additional components. The
answer to this question depends upon our interpretation of claim 12,
including its language “consisting essentially of” and “being capable of
preserving thyroid stimulating hormone.” The answer also depends upon
our understanding of what the Examiner must show to make a prima facie
case of obviousness.
Giving claim 12 its broadest reasonable interpretation, its preserving
composition requires two components—“about 0.05 to about 0.5 weight
percent of a chelating agent” and “about 5 to about 25 weight percent of a
cell lysing agent” in an aqueous medium. Due to the language “up to,” the
recited the antifreeze and preservative agents are optional. Steaffens clearly
discloses preserving compositions having a chelating agent and a cell lysing
agent in amounts that encompass or overlap Appellants’ claimed ranges.
The language “consisting essentially of” excludes other components that
materially affect the claimed composition. In each of Steaffens’
embodiments, Steaffens includes additional components, i.e., a blocking
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