Appeal No. 2003-1042 Page 7
Application No. 09/019,764
are encompassed within the claimed concentrations; however, these values fall
outside of the calculated range if one uses a standard deviation of no more than
2%, as in Table 3.” Id. at 7. Table 3, according to the examiner, “merely
teaches that a selected concentration is reproducible within a standard deviation
of +/- 2.0%.” Id. at 6.
Appellants respond by asserting that the examiner is incorrectly looking at
Tables 5 and 6 in isolation, and not in context with the specification. See Reply
Brief, page 2. In fact, according to appellants, those tables refer to an analytical
technique for analysis of combination preservatives and their degradation
products in vaccines. Table 5 pertains to the efficiency with which the technique
recovers the preservatives from the biological samples, and Table 6 pertains to
stability studies. Appellants thus contend that “[o]ne skilled in the art, reading
Tables 5 and 6 in their proper context (i.e., in light of the entire specification),
would understand that these tables do not provide guidance for how much the
recited preservative concentrations of the claims can vary since that is not what
Tables 5 and 6 address.” Id. at 3.
We agree with appellants that one of ordinary skill in the art would look to
Table 3 to construe “approximately” in the claims as meaning a deviation of +
2.0%. Table 3 is drawn to the reproducibility of areas of six replicate injections,
noting that “[f]or six repeated injections in the same run, the relative standard
deviations were better than 2% for all compounds.” Specification, page 10.
Table 4, however, is drawn to the limit of detection for each compound, and
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