Appeal No. 2005-1117
Application 10/078,043
tympanic membrane via the external acoustic meatus, and the intensity thereof must be such that
erythema6 of the tympanic membrane is minimized.
We found above that appellants have defined the term “proximate” to mean placement of
the apparatus “near” the locus of the pathogen in the organism. With respect to claim 11,
appellants disclose that with respect to “pathogens in the inner ear, placement proximate would
mean insertion into the ear in reasonable proximity to the pathogen in the inner ear, such as near
the tympanic membrane,” and disclose in specification Example 1 an apparatus that “contains a
tip or speculum for facilitating the application of the pulsed broad-spectrum electromagnetic
radiation, in this case pathogens located in the ear” (specification, page 8, ll. 12-15, and page 23,
ll. 3-5; see also page 20, ll. 18-21 and 24-27). We determine that the broadest reasonable
interpretation of the language of claim 11 in light of the specification is that the claimed
apparatus has the structure such that the source of broad-spectrum electromagnetic radiation is
focused on the tympanic membrane via the external acoustic meatus or auditory canal from any
position next to the auricle or external ear to a position within the external acoustic meatus or
auditory canal, that is, near the tympanic membrane, with respect to the ear of any animal. We
find no basis in either the language of claim 11 or in the written description of the specification
upon which to read into claim 11 the limitation of the structure of the apparatus of specification
Example 1. See Morris, supra; Zletz, supra. Thus, we agree with appellants’ argument that one
skilled in this art would recognize structures that expose the tympanic membrane to
electromagnetic radiation of suitable intensity.
Turning now to Eckhouse, appellants do not dispute the examiner’s finding that the
reference discloses a broad-spectrum electromagnetic radiation range that falls within and thus
anticipates the claimed range with respect to claims 1 and 11. Thus, the issue centers on whether
at least a part of the Eckhouse apparatus is inherently capable of placement proximate the in-vivo
location of a pathogen to focus electromagnetic radiation on that location in and on any plant or
plant part and on the tympanic membrane of any animal.
The examiner finds, and we agree, that Eckhouse discloses a handheld flash lamp, which
6 The term “erythema” is generally defined as an “[i]nflammatory redness of the skin.” See
generally, Stedman’s Medical Dictionary 484.
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