Appeal 1997-2572
Application 08/220,562
Another relevant case is Berenter v. Quigg, 737 F.Supp.
5, 14 USPQ2d 1175 (D.D.C. 1988), involving a civil action
under 35 U.S.C. § 145 seeking judicial review of a decision of
this board. The following claim was before the district court
[matter in brackets, indentation and bold added]:
A method for treating an infestation of
cockroaches selected from the species ***, said
species being characterized in that a first habitat
of these species during early development and
reproduction is different from a second habitat ***
during a post-migratory stage, to substantially
eliminate said infestation and prevent its spread to
beyond the locus thereof which comprises
[1] identifying said first habitat, and
[2] applying lethally effective amount of
pesticide to an area consisting of said first
habitat, whereby to exterminate any cockroaches of
said species present in said area and substantially
prevent further reproduction thereof.
Berenter maintained that his claim limited the habitat to
which the pesticide is applied to the first habitat; the board
had held that "comprises" opened the claim to other steps,
including a step of applying a pesticide to the second
habitat. The district court, citing Mannesmann, agreed with
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