Appeal No. 2003-1042 Page 8
Application No. 09/019,764
Table 5 is drawn to recovery studies of biological samples spiked with three
different levels of preservatives. See id. at 11. Thus, of the three tables, one of
ordinary skill in the art would look to the reproducibility of replicate injections to
determine the metes and bounds of approximately. The Hennessey declaration
therefore establishes the unexpected superiority of the results obtained with the
claimed preservatives, and the rejection is reversed.
Moreover, the panel would like to note that, in cases such as this, when
appellants make statements on the record of how a term in the claim should be
construed, such as appellants made for the term “approximately” in the instant
appeal, those statements should be taken into consideration by the examiner in
considering the patentability of the claims. Certainly, the construction proposed
by appellants should not be adopted if statements in the specification contradict
it. In cases such as this, however, where the definition is consistent with the
specification, it can and should be considered when considering the
appropriateness of the rejection and any arguments or evidence proffered by
appellants.
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