Appeal No. 2007-0055 Page 9
Application No. 10/053,299
component” which includes isoleucine stereoisomers and “active analogs of isoleucine”;
“B) at least one additional pharmacologically active substance” selected from a list of
materials; and optionally “C) . . . carrier materials and/or excipients.”
For claims 11-13, Appellants argue that Pederson does not disclose free
isoleucine amino acids or the listed ingredients in combination with them. Reply Br. 6.
We concur with Appellants that Pederson does not disclose isoleucine, per se.
However, we have construed (above) the claimed isoleucine analog to encompass
Pederson’s chelate.
Claim 11 recites that the isoleucine analog is “active,” but does not require that it
be “active” in blocking microbial adherence. Any activity can satisfy the claim, including
its activity in forming “chelates capable of releasing a metal ion under suitable
conditions” as described by Pederson. Column 6, lines 41-44. Thus, we find that this
element of the claim is met by Pederson.
For component “B)” of claim 11, the Examiner cites Pederson’s disclosure at
column 7, lines 56-60 and column 8, lines 35-67 of fluoride compounds, antimicrobial
agents, and xylitol, each which is a member of the list recited in claim 11, “B).” Answer
8. Appellants did not specifically challenge this finding and we find no fault in it.
According to Pederson, the metal ion amino acid chelate can be present in an
amount up to 10%.” Id., column 5, line 36-38. As concluded by the Examiner, this
amount at least overlaps with the “0.001 to about 99% by weight” recited in claim 11,
and the narrower ranges in claims 12 (“0.002 to about 50%”) and 13 (0.1 to about 25%).
Answer 5. It is well-established that even a slight overlap in ranges establishes prima
facie obviousness. See e.g., In re Peterson, 315 F.3d 1325, 1329, 65 USPQ2d 1379,
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