Appeal No. 2001-2411
Application No. 08/879,422
claims to require that the treated patient have a “functional immune system.”
See Paper No. 18 (filed Jan. 28, 2000), page 2. Appellants argued that “SCID
mice do not have a working immune system. Since the mice are
immunodeficient, without B or T lymphocytes, . . . [they] do not need
immunosuppressive treatment prior to receiving foreign cells, such as TALL-104
cells.” Id., page 3.
Finally, in the Appeal Brief, Appellants argue that “[t]he term ‘functional
immune system’ does not mean to the person of skill in the art that the patient’s
immune system is perfect, but simply that it is operational, i.e., that humoral
and/or cellular immune responses are functioning in the patient.” Page 4.
Appellants have cited two dictionaries as defining “functional” to mean “capable
of performing; operative,”4 or “performing or able to perform a function.”5 See the
Appeal Brief, pages 9-10.
On the basis of the record, including the claim as a whole, the
specification, and the prosecution history, we agree with Appellants’
interpretation of the claim language. We construe a “functional immune system”
to be an immune system that can mount an effective humoral and/or cellular
immune response to foreign antigens. In other words, a patient with a functional
immune system is simply a patient who is not immunodeficient (e.g., not a SCID
mouse). A functional immune system is not limited to those immune systems
that work perfectly or that respond with 100% effectiveness to every potential
4 The American Heritage Dictionary of the English Language, 3rd ed. (1996) (exhibit F attached to
the Appeal Brief).
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