Appeal No. 1997-4272
Application No. 08/429,053
More precisely a subject of the invention is the SPS of maize.
Pages 1-2. These statements are directed to the SPS enzyme itself rather than
to antibodies directed to SPS. On page 5, however, the specification states that
“[a]lso a subject of the invention is monoclonal antibodies directed specifically
against the SPS.” Taken together, all these statements suggest that the
inventors intended to claim patent rights to SPS enzymes, and antibodies
directed thereto, from all sources. On the other hand, most of the specification
and all of the working examples are directed to various aspects of the maize SPS
enzyme. Thus, the specification does not resolve the ambiguity of claim 24.
We next consider the prosecution history. The application as filed
contained claims 1-22. Claims 1-9 and 14-22 were cancelled by preliminary
amendment (Paper No. 3, filed April 26, 1995). Original claims 12 and 13 were
replaced by claims 24 and 25 (in Paper No. 5, filed April 26, 1995), which read as
follows:
24. A monoclonal antibody directed specifically against proteins having
saccharose phosphate synthetase (SPS) activity.
25. A monoclonal antibody of claim 24 directed against maize (SPS).
The scope of claims 24 and 25, as originally filed, was clear: claim 24
encompassed antibodies directed against any SPS enzyme, and claim 25 was
limited to antibodies directed against maize SPS.
Further amendments, however, confused the issue. First, claim 24 was
amended to add the Sequence ID limitations, so that the claims then read as
follows:
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