Appeal No. 94-3222
Application 07/815,630
of the claims leaves the reviewing body in a quandary as to
what they cover, the examiner and the Board may not rely on
speculation as to the meaning of the claims in support of a
rejection.) In re Moore, 439 F.2d 1232, 169 USPQ 236 (CCPA
1971) instructs at 1235, 169 USPQ at 238 [footnotes omitted]:
[The] . . . first inquiry therefore is merely to
determine
whether the claims do . . . set out and circumscribe a
particular area with a reasonable degree of precision and
particularity. It is here where the definiteness of the
language employed must be analyzed--not in a vacuum, but
always in light of the teachings of the prior art and of
the particular application disclosure as it would be
interpreted by one possessing the ordinary level of skill
in the pertinent art.
Once having determined that the subject matter defined by
the claims is particular and definite, the analysis then
turns to the first paragraph of section 112 to determine
whether the scope of protection sought is supported and
justified by the specification disclosure.
For example, the examiner appears not to have interpreted
the term “allergen” in Claims 2 and 6, the phrases “allergy to
an allergen” in Claim 2 and “allergy to said allergen” in
Claim 6, the phrases “ameliorates . . . the symptoms of said
allergy” in Claim 2 and “an amelioration . . . of symptoms of
allergy” in Claim 6, the term “non-antibody fraction” in
Claims 2 and 6, the phrase “a non-antibody fraction of milk
from a milk-producing animal that has been immunized with said
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