Appeal No. 2001-1264 Page 6
Application No. 08/819,630
interleukin-8 under certain conditions but the method is operated in such a manner that
the required selective adsorption of chemokines but for interleukin-8 occurs.
Alternatively, it may be that the process must be operated such that the body fluid is
pretreated to remove interleukin-8 prior to contact with the adsorbent. Another
possibility is that the patient is selected such that the condition they are suffering from
results in the presence of chemokines but for interleukin-8 so that treatment of body
fluids from that patient would meet the stated exception. Another way in which the
claims may be interpreted is that the claims are intended to encompass removal of
chemokines from a body fluid of a patient using an adsorbent so long as the adsorbent
does not remove interleukin-8 exclusively. In other words, the claimed method may
encompass treatment of patients whose body fluids contain a number of chemokines
including interleukin-8 so long as the adsorbent removes all chemokines including
interleukin-8 while the claim would not include the treatment of such a patient if the
adsorbent selectively removes interleukin-8 while not adsorbing any other chemokine.
When a claim is subject to so many alternative interpretations as to its metes
and bounds and where the specification provides no guidance as to how the claims
should be interpreted, the claims are fraught with ambiguity. As set forth in In re Zletz,
893 F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989):
[D]uring patent prosecution when claims can be amended, ambiguities
should be recognized, scope and breadth of claim language explored, and
clarification imposed....An essential purpose of patent examination is to
fashion claims that are precise, clear, correct, and unambiguous. Only in
this way can uncertainties of claim scope be removed, as much as
possible, during the administrative process.
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