Appeal No. 2007-4245
Application 09/489,310
A method of treating dental erosion comprising orally
administering to a mammal a beverage composition having a
pH of less than about 5; wherein the beverage composition
comprises a compound having the structure:
wherein n is an integer averaging from about 7 to about 100 and
M, M’, and M’’ are each, independently, selected from the
group consisting of sodium and potassium, and wherein the
beverage composition is substantially free of calcium and
fluoride.
The Examiner found that the recited “method for treating dental
erosion” requires only that the beverage be “orally administered” to a
mammal which would have occurred in the prior art when the beverage was
consumed by the mammal. Citing Jansen v. Rexall Sundown, Inc., 342 F.3d
1329, 68 USPQ2d 1154 (Fed. Cir. 2003), the Examiner stated that where a
treatment preamble is recited, the phrase “in need thereof” must appear in
the body of the claim to require administration to a particular individual
requiring such treatment. Office Action dated March 17, 2004 at 4.
The Examiner indicated that the rejection would be overcome if claim
23 were amended to read, “A method for treating dental erosion, comprising
orally administering to a mammal in need thereof an effective amount of a
beverage” (emphasis added). Office Action dated November 1, 2004 at 3;
see also Office Action dated March 17, 2004 at 4.
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