Appeal No. 2001-0942 Page 8
Application No. 08/473,960
contradistinction with what is claimed. Examiner (Examiner’s Answer, p. 5), on the other
hand, argues that “susceptible” characterizes the organism and is unrelated to the
application of the ionizing radiation. To resolve this matter, we turn to the disclosure of
the patent3. However, the patent does not define the word “susceptible.” Accordingly,
we give it the word; that is, to be easily influenced by or affected with. Therefore,
Mitchell patent claim 13 is directed to administering the claimed compounds to an
organism that is easily influenced by or affected with oxidative stress due to the
formation of free radical species by ionizing radiation. This interpretation does not, as
appellants argue, limit administering the compounds to organisms untouched by
ionizing radiation. It does not follow that an organism influenced by oxidative stress due
to the formation of free radical species by ionizing radiation necessarily describes the
organism prior to being exposed to ionizing radiation. We have been provided no
evidence that an organism exposed to ionizing radiation, whether partially or completely
radiated, lacks the capacity to be influenced by oxidative stress. Absent such evidence,
the word “susceptible” in Mitchell claim 13 is reasonably interpreted to mean that the
organism possesses the ability to be influenced by or affected with oxidative stress due
to the formation of free radical species by ionizing radiation, irrespective of when the
3 "We are not here concerned with what one skilled in the art would be aware [of] from reading the claims
but with what inventions the claims define," In re Sarett, 327 F.2d 1005, 1013, 140 USPQ 474, 481 (CCPA
1964).
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