Appeal 2007-2556
Application 10/274,711
FINDINGS
Claims
The appellant challenges the rejection of the claims as a unitary
group1 so we will analyze the rejection in terms of claim 1,2 which defines
the invention as follows—
1. A food supplement formulation, comprising:
L-methionine;
L-arginine;
zinc;
selenium;
Echinacea;
cranberry;
ginkgo; and
usnea barbata.
The Board must give claim 1 its broadest reasonable construction.3
Claim 1 is a composition claim without any express or implicit use
limitation. It uses the "comprising" transition, which means the claim is
open to the inclusion of ingredients other than those expressly listed.
Although the formulation must supplement food, the formulation itself could
be a liquid, a solid, or a mixture of the two. The amount of each ingredient
is not specified in claim 1.
Obviousness
In analyzing obviousness, the scope and content of the prior art must
be determined, the differences between the prior art and the claims
1 Appeal Brief (Br.) 4-6.
2 Claim language is taken from the claims appendix of the appeal brief. The
authority for selecting claim 1 appears in 37 C.F.R. § 41.37(c)(1)(vii).
3 In re Bigio, 381 F.3d 1320, 1324, 72 USPQ2d 1209, 1211 (Fed. Cir. 2004).
2
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