Tuesday, October 29, 2013

Albrecht loses on anticipation at PTAB

from Ex parte Albrecht

An issue with a generic class in a claim:

Further, the Decision explains:

Appellants’ assertion that neither Oto nor the Examiner’s reference Ul used sodium hyaluronate as a surfactant misses the point. The claimed invention recites a composition “comprising at least one anionic surfactant.” (App. Br. 26, Claims App'x.) To read on this composition claim limitation, the prior art need only disclose a composition comprising a component that is an anionic surfactant. The prior art does not, itself, need to identify or describe using the component as such a substance to be anticipated. See Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir. 1987)(“A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.”).


Thus, the Specification description of hyaluronic acid as thickener does not limit the broad claim term “anionic surfactant” so as to exclude hyaluronic acid. “During patent examination the pending claims must be interpreted as broadly as their terms reasonably allow.” In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989).


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