Appeal No. 2001-2411
Application No. 08/879,422
antigen that might be present. As discussed below, this interpretation of the
claim language effectively resolves all of the issues on appeal.
2. Definiteness
“The definiteness of the language employed must be analyzed—not in a
vacuum, but always in light of the teachings of the prior art and of the particular
application disclosure as it would be interpreted by one possessing the ordinary
level of skill in the pertinent art.” In re Moore, 439 F.2d 1232, 1235, 169 USPQ
236, 238 (CCPA 1971). The examiner rejected the claims as indefinite “in the
recitation of ‘with a functional immune system’ because it is unclear what this
phrase means.” Paper No. 19, mailed April 19, 2000, page 4. The examiner
concluded it was unclear what specific immune functions or immune cells were
intended, and what level of immune function was required by the term
“functional.” See id.
As discussed above, we have construed “a functional immune system” to
mean an immune system that mounts a humoral and/or cellular immune
response to foreign antigens. Thus, we do not agree with the examiner that the
claim language is indefinite, i.e., that a person skilled in the art would not
understand the bounds of the claims when read in light of the specification. See
Miles Laboratories Inc. v. Shandon Inc., 997 F.2d 870, 875, 27 USPQ2d 1123,
1126 (Fed. Cir. 1993) (“The test for definiteness is whether one skilled in the art
would understand the bounds of the claim when read in light of the
5 Webster’s New World Dictionary, 3rd College Edition (1991) (exhibit H attached to the Appeal
Brief).
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