Strelchenko Application 09/357,445, Paper I (specification), p. 10, L 29 - p. 11, 1. 14 (emphasis
added). In stating that totipotent cells "arise from a precursor cell" Strelchenko uses the phrase
"arises from" to include the conversion by reprogramming of a non-totipotent cell to a totipotent
cell:
The term "arises from" as used herein refers to the conversion of one or more
cells into one or more other cells. For example, a non-totipotent precurso
cell can be converted into a totipotent cell by utilizing features of the
invention described hereafter. This conversion process can be referred to as
a reprogramming step.
Strelchenko specification, p. 12,11. 10-16 (emphasis added).
We find that Strelchenko referenced somatic cells in the specification as an example of non
totipotent cells which may be reprogrammed to be totipotent for use in nuclear transfer. This usage
is consistent with the ordinary meanings of both somatic and totipotent. We do not credit Dr.
Forsberg's testimony because it is inconsistent with both the ordinary meaning and the usage of
those terms in Strelchenko's specification, particularly with Strelchenko's identification of somatic
cells precursor as non-totipotent cells which can be converted into totipotent cells for use in forming
a cybrid.
Wehold that "totipotent"as used in Strelchenko's pre-critical date claims does not mean and
does not cover "somatic." Strelchenko has not overcome the "heavy presumption" that a claim term
takes on its ordinary meaning. Texas Digital Systems 308 F.3d at 1202,64 USPQ2d at 1818; CCS
Fitness, 288 F.3d at 1366,62 USPQ2d at 1662; K-2 Colp. v. Salomon S.A., 191 F.3d 1356,1362-63,
52 USPQ2d 1001, 1004 (Fed. Cir. 1999); Johnson Worldwide Assocs., Inc. v. Zebco Com., 175 F.3d
985, 989,50 USPQ2d 1607,1610 (Fed. Cir. 1999); Specialty Composites v. Cabot Co1p., 845 F.2d
981, 986, 6 USPQ2d 1601, 1604 (Fed. Cir. 1988). Thus, Strelchenko's precritical date claims and
the Stice 577 claims are directed to substantially different subject matter.
4.
When the terms totipotent and somatic are properly construed, Stice's 577 claims and
Strelchenko's precritical date claims are directed to fundamentally different processes. While one
of the important goals ofthe subject matterofboth the Stice 577 claims and Strelchenko's precritical
date claims was the same, i.e., the capability of using mature cells as the genetic starting material
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