Appeal No. 95-1231
Application No. 07/689,215
claim language. We find ourselves in agreement with appellants' statement at page 4 of
the Appeal Brief (Brief) which states:
In reading the claims, one skilled in the art would understand that after
the contact of the test product with the human serum, C1r may be reduced
and C4a may be generated within the serum. Hence, the serum then
becomes the reagent used in the separate measurements of step (B).
We read the term "the" which precedes the phrase "human serum" in line 2 of step (A) to
be indicative of an antecedent basis for the subject serum. We find no reference to the
control human serum in the claim prior to this usage. The only use of the phrase "human
serum" which precedes the use of the phrase in line 2 of Step (A) is that serum which has
been contacted with the immunoglobulin product being tested. We conclude that the
phrase "the human serum" refers to that serum previously contacted with the
immunoglobulin product. We note that to accept the examiner's interpretation of the
phrase as being directed not to the previously contacted human serum, but instead to
human serum intended to act as the control, renders the claimed method of determining
the anticomplement activity of the immunoglobulin product meaningless. Such a reading
would result in data relating to the control serum and would not produce a determination of
the anticomplement activity of the immunoglobulin product. We
choose not to give the claims such an unreasonable interpretation which is inconsistent
with the invention as described in the specification.
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