Appeal No. 2002-1740
Application No. 08/447,398
To that end, we also note that during ex parte prosecution, claims are to be given their
broadest reasonable interpretation consistent with the description of the invention in the
specification. In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
Claim 47 is directed to a vaccinating agent for use in immunizing a mammalian
host susceptible to disease caused by a pathogen from the genus Mycobacterium,
comprising a recombinant purified Mycobacterium 32 kD extracellular protein, and an
adjuvant, with the proviso that said vaccinating agent does not contain an
immunologically protective amount of unpurified Mycobacterium extracellular protein.
The preamble of the claim uses the language “comprising” and thus the claim
does not exclude the inclusion of other components in the vaccine. Moleculon
Research Corp. v. CBS, Inc., 793 F.2d 1261, 229 USPQ 805 (Fed. Cir. 1986)[The term
“comprising” is inclusive and does not exclude additional, unrecited elements or method
steps.]. This is also consistent with the specification, page 17, which states that it is
“anticipated that the present invention will consist of at least one, two or, possibly even
several well defined immunogenic determinants.”
The term “purified” has not been defined in the specification. We interpret the
term “purified” broadly to encompass any separation or isolation technique, as the term
in its broadest sense means to “rid of unwanted elements”. Websters II New Riverside
Dictionary, The Riverside Publishing Co., p. 956, 1994. Such a broad reading of the
claims is consistent with the specification, page 18, indicating vaccine components may
be obtained by fractionation, chromatography or other purification methodology,
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