Appeal No. 1997-2436
Application No. 08/232,014
July 11, 2000 that counsel was reading the claims in a manner which was new to this
record. In reviewing the record in light of the arguments made by counsel, we have
determined that a material issue of claim interpretation is present, which must be resolved
before the merits of the parties' positions can be properly considered. Accordingly, we
take the following action.
New Ground of Rejection
Under the provisions of 37 CFR § 1.196(b) we enter the following new ground of
rejection.
Claims 3-50 are rejected under 35 U.S.C. § 112, second paragraph, as failing to
particularly point out and distinctly claim the invention.
Representative claim 24 is directed to a process of producing nanocapsules having
cross-linked protein-based walls. Interpretation of the claim requires a determination as
to the meaning of the phrase "nanocapsules." Applicants' representative, at the oral
argument, urged that the phrase "nanocapsules" as used in claim 24 and the range of
particle or capsule sizes present in other claims should be read as indicating a "mean"
value and not as setting specific size limitations for the particles or capsules. It is not
readily apparent that the specification supports this interpretation. In describing the
nanocapsules of the invention there is no explicit reference in the specification to a "mean"
value for the size of particles or capsules of the type encompassed by the claim 24. At
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