Interference No. 104,396
Page 4
The Meaning of the Tenn (-)-Enantiomer in this Interference
In interpreting the claims and their terms, we apply the broadest reasonable meaning of
the words in their ordinary usage as they would be understood by one of ordinary skill in the art,
taking into account whatever enlightenment by way of definitions or otherwise may be afforded
by written description contained in applicant's specification. In re Morris, 127 F.3d 1048, 1054
55, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997). In providing the broadest reasonable meaning for
the claim terms we are also mindful that there is a heavy presumption in favor of the ordinary
meaning of claim language. Kraft Foods Inc. v. International Trading Co., 203 F.3d 1362, 1366,
53 USPQ2d 1814, 1817 (Fed. Cir. 2000).
Both Cheng and Belleau have presented evidence demonstrating that the term
enantiomerrepresents a distinct concept from the term racemate and (+)-cnanti6mer. For
example, Belleau's '246 patent states that when the enantiomer is employed, it is preferably:
[S]ubstantially free of the corresponding (+) enantiomer, that is to say no more
than about 5 % w/w of the (+) enantiomer, preferably no more than about 2%, in
particular less than about I % w/w will be present.
(Belleau '246, col. 2, lines 42-46). Similarly, Cheng's involved application 08/463,960, states
that:
Without wishing to be bound by any particular theory of operability, it is possible
that the virus DNA polymerase is able to interact with the unnatural (-)
configuration. It can be expected that the therapeutic index of (-)-3'-thia-2',3'
dideoxycytidine should be better than the (+)- or (I-) -form of 3'-thia-2',3'
dideoxycytidine or its analogues.
(BX 2070, pages 1588-1589, emphasis added). As such, on the facts presented, there is
convincing evidence that the term (-)-enantiomer, as used by the parties, is distinct from the
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