Appeal 2007-0625
Application 09/969,299
Findings of Fact
1. Claim 1 is to a “catamenial tampon,” a preamble term that
identifies the article of manufacture being claimed.
2. The claimed tampon comprises “an absorbent tampon material and
an effective amount of a first active ingredient.”
3. The first active ingredient is claimed as a genus of aromatic
compounds and includes phenol, 2-phenylethanol and benzyl alcohol.
(Claim 1; Spec. 24-25.)
4. Trinh discloses an “odor-absorbing” composition of cyclodextrin
containing an antimicrobial preservative primarily “to prevent spoilage, or
prevent growth of inadvertently added microorganisms” in the cyclodextrin.
(Trinh, at col. 7, ll. 13-15.)
5. Trinh’s antimicrobial preservative can be 2-phenylethanol or
benzyl alcohol. (Trinh, col. 11, ll. 23-24.)
6. Trinh’s “preservative can be used at a level which provides an
antimicrobial effect on the treated fabrics.” (Col. 11, ll. 52-54.)
7. Trinh does not disclose using their composition on a tampon or on
absorbent tampon material (see Trinh passim) and thus does not disclose
explicitly or inherently every limitation of claim 1.
Discussion
“To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently.” In re
Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir.1997).
The preamble of a claim does not limit the scope of the
claim when it merely states a purpose or intended use of the
invention. . . . However, terms appearing in a preamble may
be deemed limitations of a claim when they “give meaning to
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