Appeal 2007-4217
Application 10/345,394
by a blender, both Example 4 (Specification 10) and Example 5
(Specification 11) refer to the amorphous gel produced by Example 1.
Thus, the Specification teaches that the amorphous gel dressing
produced in Example 1 can be used as is, that is in a six inch diameter
dressing, or may be cut to conform to the wound. The Specification also
teaches that after cleaning, a nonpyrogenic cellulose pad is produced. Thus,
the Specification teaches that the dressing may be cut. Therefore, the fact
that the dressing of Yamanaka may be cut does not differentiate it from the
dressing of claim 1, as the Specification teaches that the dressing of the
invention may be cut to conform to the wound.
The only Example in the Specification that deals with the
modification of flow properties is the example entitled “Modification of
flow properties.” (Specification 9.) In that Example, propylene glycol is
added to the amorphous gel of Example 1. However, dependent claim 3
adds an ingredient for flow modification, and dependent claim 6 specifies
that it is a polyol. Thus, based on the doctrine of claim differentiation, see
Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1187, 48
USPQ2d 1001, 1005 (Fed. Cir. 1998) (“There is presumed to be a difference
in meaning and scope when different words and phrases are used on separate
claims. To the extent that the absence of such difference in meaning and
scope would make a claim superfluous, the doctrine of claim differentiation
states that the difference between claims is significant.”), independent claim
1 would not require the addition of an ingredient for flow modification, such
as propylene glycol. Taking out the flow modifier of propylene glycol from
Example 2 leads one of ordinary skill in the art once again back to the
amorphous gel of Example 1. The process for making an amorphous gel of
5
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Last modified: September 9, 2013