Appeal No. 1997-2372
Application 08/083,945
prosecution history, is a matter of law and will normally control
the remainder of the decisional process. [Footnote omitted.]
To that end, we also note that during ex parte prosecution, claims are to be given their
broadest reasonable interpretation consistent with the description of the invention in the
specification. In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
The doctrine of claim differentiation creates a presumption that each claim in a patent has
a different scope. Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1187, 48
USPQ2d 1001, 1005 (Fed. Cir. 1998). "There is presumed to be a difference in meaning
and scope when different words or phrases are used in separate claims. To the extent that
the absence of such difference in meaning and scope would make a claim superfluous, the
doctrine of claim differentiation states the presumption that the difference between claims
is significant." Id. at 1005. For purposes of this appeal, we interpret claim 6, directed to
“A substantially pure polypeptide comprising an amino acid sequence showing at least
90% sequence identity to SEQ ID NO. 7, or a fragment thereof,” as broadly encompassing
1
both peptides which bind to heparin and peptides which do not bind to heparin. This
interpretation is supported by the doctrine of claim differentiation, as claim 37, dependent
upon claim 6, is directed to “The substantially pure peptide of claim 6, that is capable of
binding to heparin.” Therefore, we interpret claim 37 as directed to a subset of the
1SEQ ID NO:7 is an amino acid sequence corresponding to AAMP-1 polypeptide
encoded by an open reading frame in DNA of AAMP-1. Specification pages 15 and 25.
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