Appeal No. 94-3056
Application 07/812,421
depiction of this plasmid in Figure 9c. It is well known that
the protein expressed from “amp ” is $-lactamase, whichR
cleaves the lactam ring of the antibiotic ampicillin.
Transformed E. coli survive the addition of ampicillin to the
culture medium while untransformed E. coli die upon addition
of the ampicillin antibiotic to the culture medium. Thus, the
specified protein is capable of expressing the $-lactamase
protein as well as the double fusion protein referred to in
the specification as p10:WF8R:$-gal.
As set forth in In re Zletz, 893 F.2d.319, 321-322, 13
USPQ2d 1320, 1322 (Fed. Cir. 1989)(citations omitted):
...during patent prosecution when claims can
be amended, ambiguities should be recognized,
scope and breadth of language explored, and
clarification imposed. . . . An essential purpose
of patent examination is to fashion claims that
are precise, clear, correct and unambiguous.
Only in this way can uncertainties of claim
scope be removed, as much as possible, during
the administrative process.
In our view, claim 37 encompasses at least one protein which
appellants do not regard as their invention. Clarification of
the claim is required.
CONCLUSION
11
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