Appeal 2007-2516
Application 10/302,553
DISCUSSION
Rejection under § 112, second paragraph
Claims 1-20 stand rejected under 35 U.S.C. § 112, second paragraph,
as indefinite (Answer 3).
Claim 1 recites a “dry powder composition comprising lung surfactant
and particles, the particles comprising phospholipid.” The Examiner
contends that “[i]t is unclear whether the compositions have both lung
surfactant and phospholipid or just phospholipid, which is lung surfactant”
(Answer 3).
We reverse the rejection. The claim language is not unclear. In plain
language, the claim recites that it comprises 1) lung surfactant and 2)
particles comprising phospholipid. We see no reason to read out the lung
surfactant limitation from the claim simply because phospholipid can also be
characterized as a surfactant.
Consistent with the plain meaning of the claim, the Specification
describes compositions which comprise a lung surfactant (“Infasurf®” at
Specification 10: 5 (Example I)) and a phospholipid (DPPC or
dipalmitoylphosphatidylcholine at Specification 10: 8-17 (Example I)). The
Specification also states that “[t]he lung surfactant compositions suitable for
use in the present invention additionally include any of those phospholipids
known in the art” (Specification 5: 22-28), indicating that a lung surfactant
and phospholipid were expressly contemplated by the inventors.
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