Friday, October 25, 2013

Rehearing attempt in ALBRECHT fails


The gist of appellants' arguments:

Appellants request rehearing, alleging first that
while Appellants do not dispute th
at the terms “wetting agent”
and “surfactant” can be synony
ms, Appellants do dispute that
each and every substance that
can be employed as a “wetting
agent” necessarily is a “surfactan
t” and in particular, do dispute
that the use of sodium hyalurona
te as a “wetting agent” for dry
eyes necessarily means that sodium hyaluronate is a
“surfactant” (as apparen
tly assumed by the PTAB).
(Req. Reh’g 3-4.)

Second, Appellants allege the
Decision describes Appellants’
argument that “there is no indication in
the instant specification that sodium
hyaluronate is to be considered to be
an (anionic) surfactant,” but does not
explain why the argument was not given any weight. (
. at 4-5.)

In response

The Specification description of
hyaluronic acid by one of its functions
does not provide evidence that
hyaluronic acid does not have
, or may not be used for its, other functions.
Thus, the Specification description of
hyaluronic acid as thickener does not
limit the broad claim term “anionic surfa
ctant” so as to exclude hyaluronic
acid. “During patent examination the
pending claims must be interpreted as
broadly as their term
s reasonably allow.”
In re Zletz
, 893 F.2d 319, 321
(Fed. Cir. 1989).


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