Appeal No. 2006-2568 Page 4
Application No. 09/744,866
limitation its “broadest reasonable interpretation consistent with the specification.” In re
Sneed, 710 F.2d 1544,1548, 218 USPQ 385, 388 (Fed. Cir. 1983) (emphasis added).
On page 13, the specification states that “it is also possible to modify the cancer
cells in the cell suspension prior to the screening process, for example by labeling, by
attaching particles, by triggering aggregation and/or cluster formation using, for
example, suitable antibodies, enzymes, lectins, other ligands and/or receptors or
crosslinking reagents, by fixing and by inducing other defined states.” We interpret this
to mean that the cancer cells may be modified – using, for example, antibodies,
enzymes, lectins, other ligands, other receptors, or crosslinking reagents – by labeling,
attaching particles, triggering aggregation, and/or triggering cluster formation. In
addition, the cancer cells may be modified by fixing or by inducing other defined states.
We interpret claims 24 and 28 to exclude the limitations discussed on page 13 of
the specification. That is, we interpret claims 24 and 28 to require that the tumor cells
are not modified – using antibodies, enzymes, lectins, other ligands, other receptors, or
crosslinking reagents – by labeling, attaching particles, triggering aggregation, and/or
triggering cluster formation and are not modified by fixing.
2. Written Description
The examiner rejected claims 24 and 28 under 35 U.S.C. § 112, first paragraph,
for failing to comply with the written description requirement. Specifically, the examiner
argued that the specification does not support the recitation in claims 24 and 28
requiring that the disseminated tumor cells are not modified by various means prior to
screening.
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