Ex parte FREDERICK KHACHIK (BPAI)
Appeal 2009-25571
Application 11/702,486
Technology Center 1600
Decided: February 20, 2009
21. A lutein composition suitable for human consumption which
comprises:
(a) at least about 90% lutein having been extracted and purified from plant extracts which contain 10% or less of non-lutein carotenoids,
(b) no traces of toxic chemicals that would render the lutein composition unsuitable for human consumption, and
(c) significantly less than about 10% of non-lutein carotenoids obtained by purification of said plant extracts.
The examiner rejected the claim for lacking written description. The Examiner alleges that the specification would be understood to only include a limitation of at least 97%, not 90%. The patent disclosed two statements that are relevant:
1. "after recrystallization, the purity of “the resulting lutein is usually greater than 90%, most often greater than 97%." with two working examples of greater than 97%.
2. The specification also disclosed “[w]hile 70% pure lutein may be acceptable for use in animal feed, further purification of this compound may be employed to produce lutein with purity greater than 97% for human consumption”
The examiner relied upon the second to state that specification only described greater than 97% while ignoring the first statement. The Board disagreed finding that read as a whole the specification adequately described the 90% limitation. The Board stated that the second phrase only says that further purification may be employed, "but [the specification] does not say that only lutein compositions with 97% purity are suitable for human consumption." Therefore, the claim satisfied the written description requirement.
Case can be found here
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