Appeal No. 2002-1545 Page 15
Application No. 08/949,757
describes the analysis of the carbohydrates of whole cells of group A, B, C, D, F
and G streptococci. See Pritchard, abstract. In the method described by the
reference, the bacteria are grown on agar, a portion of which is transferred to a
capillary tube and subject to centrifugation. Methanolic HCl is added to the
tubes, which are then heated for 25 hours at 80°C. The sugars were derivatized
and then analyzed using gas chromatography. See id. at 89-90. Table I reports
the results of the gas chromatographic analysis. Thus, the cells are broken
down to release the individual sugars, which can then be detected using gas
chromatography, and there was no isolation of antigens comprising more than a
single sugar.
We also do not agree with the examiners contention that the claims do not
exclude whole bacteria that comprise the recited antigen. To read the claims in
that manner would completely render completely moot the preamble of the claim,
which recites “[a]n isolated Enterococcus faecalis antigen.” See In re Paulson,
30 F.3d 1475, 1479, 31 USPQ2d 1671, 1673 (Fed. Cir. 1994) (“[T]erms
appearing in a preamble may be deemed limitations of a claim when they “give
meaning to the claim and properly define the invention.’”).
Claims 1, 4, 27 and 35-38 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Aluyi.
Aluyi, according to the rejection, describes the isolation of an antigen from
Streptococcus milleri, wherein the antigen comprises a 1:2 ratio of 2-acetanido-
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