Appeal No. 2002-0427 Page 11
Application No. 08/179,656
present claim language was first introduced, Appellants described an enclosed
declaration as showing that “the amino terminal portion of LDGF is responsible
for the PDGF-like biological activity of the molecule, i.e., immunoreactivity.”
While an applicant can be his own lexicographer, any alternative meaning must
be clearly indicated in the specification. See Optical Disc Corp. v. Del Mar
Avionics, 208 F.3d 1324, 1334, 54 USPQ2d 1289, 1295 (Fed. Cir. 2000)
(“Without evidence in the patent specification of an express intent to impart a
novel meaning to a claim term, the term takes on its ordinary meaning.”).
Finally, the claims state that the amino acid change in the claimed protein
vis-à-vis SEQ ID NO:17 “does not affect the reactivity of the protein.” The
particular “reactivity” that remains unaffected is another source of ambiguity. The
specification mentions LDGF2 functions of “reacting with the PDGF receptor”
(page 5, line 7), as well as “reacting with the PDGF receptor and/or acting as a
mitogen or chemoattractant.” LDGF2 may have other reactivities that are
unknown.
“[D]uring patent prosecution when claims can be amended, ambiguities
should be recognized, scope and breadth of language explored, and clarification
imposed.” In re Zletz, 893 F.2d 319, 322, 13 USPQ2d 1320, 1322 (Fed. Cir.
1989). If the instant claims are subject to further examination, the examiner
should consider whether the language of the claims is sufficiently definite.
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