Appeal No. 96-2137
Application 07/668,920
It may be that appellants intend the differential binding function of the claimed
antibody to be determined in a relative manner on the basis of the ratio of dead cell
count:live cell count with the higher ratio denoting an antibody which would be within
the scope of claim 18. See, e.g., page 8, lines 29-32, of the specification (“Specificity
for insoluble intracellular antigens may be determined by comparing the amount of
antibody bound to ghost cells with that bound to intact cells.”). However, it is not clear
whether appellants intend the claims to be so limited. If appellants intend the
differential binding required by claim 18 to be determined on the basis of such a
relative ratio measured on the basis of the dead cells and live cells originating from the
same source/tumor, it becomes more important that the claim specify that the necrotic
neoplastic tissue and the living neoplastic tissue used to determine the differential
binding ability be from the same source.
In any event, in analyzing the data of Table 1, it must be kept in mind that
appellants state at page 22 of the specification that the “live cells” used in the assay
will “contain a relatively large proportion of necrotic cells.” Appellants do not explain
how the live cell data is to be analyzed in order to take into account the fact that dead
cells are included in the reported count values as well as live cells. Thus, it is unclear
as to what the count values set forth for “live cells” actually represent.
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