Appeal 2007-2516
Application 10/302,553
surfactant and a phospholipid which can be dipalmitoyl phosphatidylcholine
and similar to instant composition, one of ordinary skill in the art would
expect similar properties of the compositions” (Answer 8-9).
We reverse this rejection. Unlike the rejection over Alliance and
Hafner ‘970, the Examiner does not provide sufficient evidence to show that
treating with a surfactant would decrease the oxygen index and thus that
Alliance or Alliance in combination with Clements would achieve a dry
powder able to decrease the oxygen index by at least 20%. The rejection of
claims 1-23 over Alliance or Alliance in combination with Clements is
reversed.
OTHER ISSUES
In its “Definitions” section, the Specification states that lung
surfactant “as used herein refers to Infasurf® . . . containing compositions
which comprise an extract of natural surfactant from calf lungs”
(Specification 4: 29-30). When a specification reveals a special definition
given to a claim term, the inventor’s lexicography governs. Phillips v. AWH
Corp., 415 F.3d 1303, 1316, 75 USPQ2d 1321, 1329 (Fed. Cir. 2005) (en
banc). On the record before us, there is no evidence that the Examiner
considered the inventors to be their own lexicographer by interpreting the
claimed “lung surfactant to mean “Infasurf® . . . containing compositions
which comprise an extract of natural surfactant from calf lungs.” If further
prosecution is undertaken in this case, we suggest that the Examiner
consider the Specification definition of lung surfactant in interpreting the
phrase “lung surfactant” as recited in the claims.
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