Interference 104,066
contends that none of Vogelstein’s claims designated as corresponding to the count
anticipate or render obvious any of Lee’s claims designated as corresponding to the
count, assuming Vogelstein’s claims are prior art to Lee. However, when we make
side-by-side comparisons of each of the parties claims designated as corresponding to
the count, we find that Lee’s arguments lack a substantive basis.
It is well established that claim interpretation begins with the claim language
itself. Reinshaw PLC v. Marposs Societa per Azioni, 158 F.3d 1243, 1248, 48 USPQ2d
1117, 1120 (Fed. Cir. 1998). To that end, the words in the claims are given their
ordinary and accustomed meaning as understood by one of ordinary skill in the art
unless it appears from the specification that the inventor used them differently.
Teleflex, Inc., v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324, 63 USPQ2d 1374, 1380
(Fed. Cir. 2002); Toro Co. v. White Consolidated Industries Inc., 199 F.3d 1295, 1298,
53 USPQ2d 1065, 1067 (Fed. Cir. 2000)(“It is the person of ordinary skill in the field of
the invention through whose eyes the claims are construed”); Hechst Celanese Corp. v.
BP Chems. Ltd., 78 F.3d 1575, 1578, 38 USPQ2d 1126, 1129 (Fed. Cir. 1996). The
specification and prosecution history of an application are considered to determine
whether the inventor has given a term an unconventional meaning, or if a term is
tumor of the colon,” has wild-type p53 gene function. See the involved ‘366 application,
para. 1, lines 8-10. Thus, from the evidence of record it appears that cells which have
lost p53 gene function are malignant, i.e., are cancer cells having a neoplastic
phenotype; whereas, benign tumors consist of cells which have not lost p53 gene
function.
Since all of Vogelstein’s claims designated as corresponding to the count are
directed to cells which have lost p53 gene function due to a mutation in a p53 gene, it
reasonably follows that said cells are cancer cells.
9
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007