Appeal No. 2006-2568 Page 7
Application No. 09/744,866
appears to result from a hypertechnical application of legalistic prose relating to that
provision of the statute.” 558 F.2d at 1019, 194 USPQ at 196 (emphasis added). Thus,
we do not agree with the examiner that the failure to exclude modification by “inducing
other defined states” causes claims 24 and 28 to lack written description.
We also do not agree that the examiner has properly construed claims 24 and
28. We agree with the examiner that the claim language is somewhat ambiguous.
However, when the claims are given their broadest reasonable interpretation consistent
with the specification, claims 24 and 28 each 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.
As properly construed, we do not agree that claims 24 and 28 exclude
disseminated tumor cells that are modified with antibodies in any way. Thus, we do not
agree with the examiner’s argument that excluding this subject matter causes claims 24
and 28 to lack written description. Instead, because we have construed claims 24 and
28 consistent with the disclosure at page 13, lines 25-32, we agree with Appellants that
the examiner has not shown that this disclosure fails to provide support for the negative
limitation of claims 24 and 28.
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