Appeal No. 2007-0055 Page 4
Application No. 10/053,299
Claim 1 also uses another transitional phrase, “consisting essentially of,” stating
that the claimed composition is “consisting essentially of an amino acid component”
which is an isoleucine stereoisomer or active analog of it.
“Consisting essentially of” is a transition phrase commonly used to signal a
partially open claim in a patent. Typically, “consisting essentially of” precedes a
list of ingredients in a composition claim or a series of steps in a process claim.
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 Industries Inc. v. Guardian Industries Corp., 156 F.3d 1351, 1354, 48 USPQ2d
1351, 1353-54 (Fed. Cir. 1998).
The specification defines the activity of the isoleucine compound as blocking the
adherence of microbes to eukaryotic cells. Specification, page 4, line 6-17. This is also
expressly required by the claim which recites that the isoleucine is “present in a
microbial blocking quantity.” Accordingly, we understand this to be a “basic and novel”
property of the claimed subject matter. In this context, we construe the phrase
“consisting essentially of” to permit additional unlisted ingredients (with the exception of
other amino acids) that do not affect the ability of the isoleucine compounds to block
microbial adherence.
Claim 1 is a method of “blocking microbial adherence to a eukaryotic cell
surface.” However, it does not require that the “blocking” actually treat or prevent a
disease associated with infection, or that any specific amount of blocking must be
achieved by the claimed method. Accordingly, we interpret the claim to cover any
amount of blocking activity, including the blockade of one microbe from adhering to one
cell.
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