Appeal 2007-2524
Application 10/194,834
claim 36 of a composition which is “free of any other component effective
as a preservative.”
There is no example in Cagle of a composition which is “free of”
preservative and which also comprises an amount of ciprofloxacin “in a
range of about 0.15% weight/volume to about 1.1% weight/volume” as in
instant claim 36. However, Cagle states that its compositions contain
effective amounts of antibiotic (Cagle, at col. 4, ll. 1-7, at col. 10, ll. 15-25;
FF 3, 13) and these amounts are described as being “from about 0.03 to
about 30.0 percent by weight [of antibiotic]” (Cagle, at col. 4, ll. 7-11; FF 4).
Cagle also describes four ciprofloxacin compositions, each of which
contains 0.35% by weight of ciprofloxacin (Cagle, at col. 7, ll. 40-45, at col.
8, ll. 41-65; FF 8, 12) – an amount that falls within the claimed range. The
question is whether Cagle’s disclosure of amounts of ciprofloxacin which
fall within the claimed range, coupled with the description of ciprofloxacin
compositions which are free of preservative, is sufficient to establish the
existence in the prior art1 of “[a] composition comprising . . . quinolone . . .
. in an amount in a range of about 0.15% weight/volume to about 1.1%
weight/volume and . . . being free of any other component effective as a
preservative” as recited in claim 36.
Technical literature is the scientist’s narrative about his discovery. It
stands not only for the specific examples disclosed in it, but also for the
1 An anticipating “reference must describe and enable the claimed invention,
including all claim limitations, with sufficient clarity and detail to establish
that the subject matter already existed in the prior art and that its existence
was recognized by persons of ordinary skill in the field of the invention.”
Crown Operations International, Ltd. v. Solutia Inc., 289 F.3d 1367, 1375,
62 USPQ2d 1917, 1921 (Fed. Cir. 2002).
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