Appeal 2007-2371
Application 10/426,654
We are not persuaded by these arguments. Claim 1 does not require
the matrix structure to be made by hydrating the lecithin and polymer
together. Nor does claim 1 recite that the matrix consists of a structure in
which the hydrophobic tails are bound to the hydrophobic portion of the
acrylic polymer. Rather, claim 1 recites only that the two ingredients be
“combined together to form a matrix structure.”
As discussed above, the Specification does not disclose that forming a
matrix structure requires hydrating the lecithin and polymer at the same
time, or using any particular technique or series of steps. Instead, the
Specification discloses that a combination of lecithin and acrylic polymer
mixed by conventional methods will result in a matrix because of the affinity
between the two ingredients. Because Anselem combined the two
ingredients by stirring, Anselem combined the two ingredients “together to
form a matrix structure” as required by claim 1. Thus, because claim 1 does
not limit the adjuvant to any specific preparation method, Appellant’s
theoretical comparison between Anselem’s adjuvant and an adjuvant
produced by hydrating the lecithin and polymer together does not serve to
distinguish claim 1 from Anselem.
Appellant argues that the electron micrographs presented as Figures 1
through 5 of Exhibit B (Br., Evidence Appendix) demonstrate that the
claimed adjuvant is different from the adjuvant made by Anselem’s methods
(Br. 9-11; Reply Br. 4). Appellant states that Figures 3 and 4 are electron
micrographs showing lecithin and Carbopol 934 “after being hydrated
together and mixed together in the manner provided in this application”
(Br. 9), and that Figure 5 is an electron micrograph of a lecithin/acrylic
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