Appeal 2007-1073
Application 10/308,176
50% amount, separately provided for in the specification, provides written
description for a claim including about 50% MIGLYOL and about 50%
TPGS.
In view of the above, the written description rejection is reversed.
INDEFINITENESS
2. Claims 104-108 stand rejected stand rejected under 35 U.S.C.
§ 112, second paragraph, for claim indefiniteness.
The Examiner contends that the phrase "about 50% MIGLYOL 812
by weight, about 50% tocopherol PEG-1000 succinate by weight" renders
the claims indefinite since it leaves 0% for other ingredients, about 0% for
calcitriol and about 0% BHA or BHT, ingredients also recited in the claim.
The Examiner argues that one of ordinary skill in the art would not
understand the scope of the claims because they do not leave room for the
other three specified ingredients. (Answer 6.)
Appellants contend that the term "about" implies a range of numbers
and that the descriptive word “about” is not indefinite, rather, the term is
clear but flexible and is deemed to be similar in meaning to terms such as
“approximately” or “nearly”. Citing, Ex parte Eastwood, 163 USPQ 316,
317 (BPAI 1968). (Br. 15.)
We do not find the claims indefinite. The Specification indicates,
especially in the examples of the invention present in Tables 2 and 3
(Specification 25 and 26), that the amounts of calcitriol, BHT and BHA
present in the claimed unit dosage form are very small, relative to the
amounts of MIGLYOL and TPGS. In our view, one of ordinary skill in the
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