Appeal 2007-1073
Application 10/308,176
We agree with Appellants that the specification describes that the unit
dosage form of the invention may include a lipophilic agent in an amount
from 50 to 85% (Specification 18: 63), and further describes that the
lipophilic agent may be MIGLYOL 812 (Specification 11: 40).
Furthermore, the Specification, paragraph 50 describes that the surfactant
may be tocopherol PEG 1000 (TPGS) and that the surfactant may be present
in the composition from 1-50% (Specification 19: 64; Br. 9-10). In Table 2
of the Specification on page 25, compositions L1 and L2 describe unit
dosage forms containing MIGLYOL and (TPGS), albeit not in 50%
amounts.
In In re Wertheim, 541 F.2d 257, 256, 191 USPQ 90, 98 (CCPA 1976),
a disclosure of 25-60% solids content taught those skilled in the art that 35-
60% solids was part of the invention in Wertheim, although the latter range
was not expressly mentioned therein. In re Blaser, 556 F.2d 534, 538, 194
USPQ 122, 125 (CCPA 1977). See also, In re Schaumann, 572 F.2d 312,
316, 197 USPQ 5, 9 (CCPA 1978).1
We similarly find that the disclosure of a specific unit dosage form
containing each of the MIGLYOL 812 and TPGS surfactant when read in
view of the range of amounts for each ingredient, and literally reciting a
1 In Schaumann, claims to a specific compound were anticipated
because the prior art taught a generic formula embracing a limited number of
compounds closely related to each other in structure and the properties
possessed by the compound class of the prior art was that disclosed for the
claimed compound. In Schaumann, the facts substantiated that one of
ordinary skill in the art would “at once envisage the subject matter within the
reference.” Schaumann, 572 F.2d at 316, 197 USPQ at 9 (CCPA 1978).
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