Judge Andrews on Friday accepted a defendant's argument that, during prosecution, the applicant had so clearly and unambiguously disclaimed the prior art that it warranted construing "comprising" as used in a claim element to mean "consisting essentially of"—a major narrowing of claim scope.
The claim involved an oral tablet that delivered multiple drugs, with a "barrier layer" between them. The barrier layer claim element included the word "comprising":
a barrier layer comprising hydroxyl propyl methyl cellulose 2910, polyoxyethylene glycol 400, polysorbate 80, and titanium dioxide . . .
The portion after "comprising" in the claim element matches the composition of a commercially-available barrier layer called "Opadry ®White (YS-1-7003)."
The Court found disclaimer based on …
