Appeal 2007-1154
Application 09/367,950
Claim interpretation:
In the event that Appellant’s Specification provides adequate written
descriptive support for the phrases “instructing a patient to inhale” and
“instructing a patient to inhale the composition on demand,” the Examiner
should take this opportunity to explain how these phrases are to be
interpreted; and how the relevant prior art relates to this claim interpretation.
Claim 13 is drawn to a method of (1) treating and (2) preventing
asthma symptoms. As discussed below, the treatment of asthma symptoms
with a twice daily administration of the composition of claim 13 was known
in the art. While the single step in claim 13 requires that a patient be
instructed to inhale a composition on demand, it appears that there is nothing
in claim 13 that requires that a patient actually inhale the composition; or if
inhaled, that the patient inhale the composition more than is recognized in
the art.
Stated differently, claim 13 only requires that the patient be instructed
to do something (e.g., inhale a composition) on demand when the patient
experiences an increase in asthma symptoms. There is no requirement that
the patient actually inhale the composition (Oral Hearing Transcript 7: 11-
19). According to Appellant the “prevention” of asthma symptoms is
accomplished by administering the same composition as is used for treating
but where the timing of the administration is at a point before
the symptoms of an acute attack begin, or early in the
development of an acute attack when the symptoms are still
relatively minor but are felt by the patient. When a patient
knows in advance that he/she is about to encounter asthma-
triggering conditions such as those mentioned in the
[S]pecification, he/she can take preventative action by using the
formoterol/budesonide inhaler in accordance with the claimed
methods, i.e., “on demand” or “as needed.”
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