Appeal No. 2002-1366
Application No. 09/069,628
35 U.S.C. § 102
Claims 1-5 stand rejected under 35 U.S.C. § 102(b) as anticipated by DeGreve.
“A claim is anticipated only if each and every element as set forth in the claim is
found, either expressly or inherently described, in a single prior art reference.”
Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631, 2 USPQ2d 1051, 1053 (Fed.
Cir. 1987). “It is also an elementary principle of patent law that when, as by a recitation
of ranges or otherwise, a claim covers several compositions, the claim is ‘anticipated’ if
one of them is in the prior art.” Titanium Metals Corp. of America v. Banner, 778 F.2d
775, 782, 227 USPQ 773, 779 (Fed. Cir. 1985).
Prior to analysis of the prior art before us we interpret claim 1. Claim 1 is
directed to an isolated monoclonal antibody specific for the spores of an individual
species of Bacillus. [Emphasis added.] Upon review of the term “the spores” as used
and described in the specification, we interpret the claim term to refer to complete, intact
Bacillus spores and not to spore components or fragments, such as spore crystals or
spore crystal proteins. For example, the specification, pages 1 and 15, indicates that
the invention is directed to monoclonal antibody specific for intact Bacillus spores.
Examples 2 and 3 of the specification describe the inoculation of mice with Bacillus
spores emulsified in Freund’s adjuvant. Specification, page 10. Hybridomas reactive
with specific Bacillus spore species were screened and diluted. Monoclonal antibodies
were obtained. Specification, page 16. Thus, the specification supports the claim
interpretation that the claimed monoclonal antibody is specific for complete Bacillus
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