Appeal No. 2007-0055 Page 8
Application No. 10/053,299
words in their ordinary usage as they would be understood by one of ordinary skill in the
art, taking into account whatever enlightenment by way of definitions or otherwise that
may be afforded by the written description contained in the applicant's specification.”
In re Morris, 127 F.3d 1048, 1054, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997); In re Crish,
393 F.3d 1253, 1256, 73 USPQ2d 1364, 1367 (Fed. Cir. 2004). An “analog” is defined
as a compound which has a similar, but not identical structure to another.3 Pederson’s
chelate comprises the isoleucine structure which is attached to a metal ion. Pederson,
column 3, lines 65-67. This structure is similar, but not the same as isoleucine, and
therefore we consider it to be an isoleucine analog that falls within the scope of the
claim.
Although Pederson’s chelate is an analog within the claim scope, there is no
evidence of record that it would block microbial adherence as required by claim 1.
Pederson shows that the amino (NH2) and carboxyl (COOH) groups of the amino acid
are coordinated to the metal ion (M). Pederson, column 6, lines 50-55. There is no
evidence in the record for presuming that this structure would still possess the claimed
microbial blocking activity. For this reason, we do not find that prima facie obviousness
has been established for claim 1. Accordingly, we reverse the rejection as it applies to
claims 1-6, 8-10, 18, and 41-44.
Claims 11-16, and 25
Claim 11 is a composition claim, and does not require that the isoleucine
component block microbial adherence to a eukaryotic cell surface in a mammal. The
composition comprises “A) from about 0.001 to about 99% by weight of an amino acid
3 Webster’s New Collegiate Dictionary 41 (1976)
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