Interference No. 103,891
ment does not render the count ambiguous. See id. at 32, 194
USPQ at 547.
We do not find the term “solubilizible” to be at all
ambiguous, and thus we give it its ordinary and accustomed
meaning. We construe the term as capable of entering a solution.
As such, the count requires the analyte in subparagraph iii) of
the count to be able to enter into solution when the liquid
sample contacts it.13
We agree with Flanders that the Moorman record does not
expressly state that the Strep A antigen added to the positive
control is in solubilizible form. 14 Furthermore, if the Strep A
13 At oral hearing, Moorman advanced an interpretation that
“solubilizible” could mean that the antigen was in solution when
it was applied to the test strip during manufacture and did not
require the ability to dissolve when contacted by the liquid
sample. We are of the view that this construction of the subject
matter of the count is against the plain language thereof. The
count requires the third zone of the absorptive material to
“contain[s]” a portion of the analyte in solubilizible form. If
the antigen is prereacted with the strep antibody when it is
placed as a dot thereon, it would not be contained in the absorp-
tive material in solubilizible form.
14 We are in agreement with the Moorman argument, found only
in the surreply, that MX3 does state that Ms. Terrett added the
strep antigen to the positive test zone on April 5, 1988.
However, it neither states where on the zone it was added, i.e.,
upstream from or on the antibody, nor whether it was contained in
the strip in solulizible form. However, we do note that MX4 from
April 13, 1988 specifically states that the GAS-CHO was placed on
the latex dot. MX4 does not indicate a change in experimental
procedure from the prior experiment of MX3. This leads us to
believe that it was more likely than not that the GAS-CHO antigen
(continued...)
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