Appeal No. 2002-1360 Page 4
Application No. 09/133,942
1. Claim construction
“[N]ot unlike a determination of infringement, a determination of
anticipation, as well as obviousness, involves two steps. First is construing the
claim, . . . followed by, in the case of anticipation or obviousness, a comparison
of the construed claim to the prior art.” Key Pharms. Inc. v. Hercon Labs. Corp.,
161 F.3d 709, 714, 48 USPQ2d 1911, 1915 (Fed. Cir. 1998).
“It is axiomatic that, in proceedings before the PTO, claims in an
application are to be given their broadest reasonable interpretation consistent
with the specification and that claim language should be read in light of the
specification as it would be interpreted by one of ordinary skill in the art.” In re
Sneed, 710 F.2d 1544,1548, 218 USPQ 385, 388 (Fed. Cir. 1983) (citation
omitted). “Although words in a claim are generally given their ordinary and
customary meaning, a patentee may choose to be his own lexicographer and use
terms in a manner other than their ordinary meaning, as long as the special
definition of the term is clearly stated in the patent specification or file history.”
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582, 39 USPQ2d 1573,
1576 (Fed. Cir. 1996).
In this case, the claims are directed to a method of measuring UTI
concentration comprising adding to the sample anti-UTI antibodies “that are not
adhered to an insoluble support,” and “measuring the degree of the resulting
agglutination.” Claim 1. The specification discloses that “it was found that
agglutination reaction can be measured even if free anti-UTI antibodies that are
not adhered to an insoluble support such as latex particles etc. are used.” Page
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