Appeal No. 1999-1384
Application No. 08/583,912
pertinent art.” In re Moore, 439 F.2d 1232, 1235, 169 USPQ 236, 238 (CCPA
1971).
According to the examiner (Answer, page 4) “the recitation [in claim 25]
that the membrane may be rinsed and said device may be reused does not
provide any positive limitation that the membrane and device are reused.”
Therefore, the examiner finds (Answer, page 4) that “the intended use, rather
than any device component, is being further limited.”
According to appellants’ specification (page 6) “the use of a non-
absorbent membrane allows the membrane, once used, to be readily rinsed of
sample and reused.” Appellants’ specification (page 3) contrasts the claim
invention with that of Kidwell, disclosing that in Kidwell “[a]nalyte from the sample
displaces the labelled analyte, causing the labelled analyte and the remainder of
the sample to pass into a superabsorbent layer. The superabsorbent layer
contains a substrate for the enzymatic label and any needed indicator….
Additionally, the Kidwell microassay card is not reusable.”
Appellant argues (Brief, page 4) that “[c]laim 25 further limits claim 9 by
requiring that the device be constructed so as to be reusable. … Reusability in
the recited manner is not merely a matter of intended use, but must be
engineered into the apparatus itself.”
We agree with appellants. When claim 25 is viewed in the context of
appellants’ specification, and the prior art, the limitation that “the membrane may
be rinsed and said device may be reused” further limits the device of claim 9, so
that it is to be reusable.
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