Interference No. 103,197
invasive spectrophotometric analysis of tissue, the
obviousness of which was explained above.
Buschmann argues that "the count should not be
interpreted as reading on [non-pulse] oximetry (even though it
literally does), but should be construed as referring to pulse
oximetry." However, it is well settled that unambiguous52
counts are given the broadest reasonable interpretation
without reference to either party's disclosure, DeGeorge v.
Bernier, 768 F.2d 1318, 1321, 226 USPQ 758, 760-61 (Fed. Cir.
1985); Buschmann has not asserted, let alone demonstrated,
that the count is ambiguous. See also Newkirk v. Lulejian,
825 F.2d 1581, 1583, 3 USPQ2d 1793, 1795 (Fed. Cir. 1987)
(limitations not clearly included in a count should not be
read into it). When the count is given its broadest
reasonable construction, it does not require oximetry of any
type, let alone specifically pulse oximetry. As a result, the
count clearly encompasses unpatentable subject matter, i.e.,
the dual-probe arrangement shown in Kapany's Figure 7.16(b)
when used either for two-dimensional imaging of tissue or for
spectrophotometry (excluding oximetry) of tissue. The
B.Br. 108.52
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