Appeal No. 94-3182
Application 07/899,707
page 12, line 2. Note that dependent Claims 30 and 31, if
they are not read to further limit the amount of antibiotic
contained in the test tubes of Claim 29, do not further limit
Claim 29 at all and are improper dependent claims. See 35
U.S.C. § 112, fourth paragraph.
On the other hand, in holding that appellant’s claims are
directed to no more than test tubes containing paraffin coated
slides and finding that appellant’s claims are anticipated by
the test tubes containing the paraffin coated slides described
by Ollar, the examiner gave appellant notice that his claims
are ambiguous and the phrase “adapted to contain a sterile
aqueous broth, an amount of antibiotic to be tested and MAI to
be assayed” in Claim 29 is held meaningless, i.e., the phrase
does not further limit the claimed invention. Rather than
amend the claim so to alleviate the ambiguity and clarify that
the test tubes of the claimed apparatus do indeed contain a
sterile aqueous broth and optionally an antibiotic and/or MAI,
appellant incomprehensively added means plus function
limitations, apparently to distinguish the paraffin coated
slides of the claimed apparatus from the paraffin coated
slides Ollar describes which inherently are adapted to being
placed in test tubes which are capable of being used to
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