Appeal 2007-2371
Application 10/426,654
cholesterol, oleic acid, tocopherol succinate and organic solvent” (id.). The
Examiner concludes that “[s]ince combining lecithin and acrylic polymer
form[s] a matrix according to the teaching of appellant’s specification and
claim 1, the combination of lecithin and carbopol, a specific acrylic
polymer[,] would inherently form a matrix. Thus, Anselem meets the
limitations of the claim 1” (id. at 4).
“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 (Fed. Cir. 1997). Thus, “a prior art
reference may anticipate when the claim limitation or limitations not
expressly found in that reference are nonetheless inherent in it.” Atlas
Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1946
(Fed. Cir. 1999).
Inherency cannot be established by merely showing that an asserted
limitation is probable or possible. In re Oelrich, 666 F.2d 578, 581 (CCPA
1981). “If, however, the disclosure is sufficient to show that the natural
result flowing from the operation as taught would result in the [the limitation
in question], it seems to be well settled that the disclosure should be
regarded as sufficient.” Id. (quoting Hansgirg v. Kemmer, 102 F.2d 212,
214 (CCPA 1939).
Anselem discloses preparing lipid-in-water emulsions containing very
small lipid particles, termed “emulsomes[,] . . . which are useful as delivery
vehicles for both hydrophilic and lipophilic immunogens . . .” (Anselem, col.
1, ll. 11-19). Example 4 of Anselem discloses preparing a lipid mixture
containing lecithin, drying the mixture, adding an aqueous EDTA solution,
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