Appeal No. 2003-1417 Page 5
Application No. 09/298,404
Appeal Brief, pages 5-6. Appellants point out, however, that the instant
claims are directed to antibodies that “specifically bind” to one of Nsp1, Nsp2,
Nsp3. Appellants construe this limitation to mean that “the presently claimed
antibodies . . . bind to polypeptides comprising the amino acid sequences of SEQ
ID NO:1, 3, or 5 and not substantially to any other polypeptides.” Id. (emphasis
in original).
The examiner does not dispute this interpretation of the claims. See the
Examiner’s Answer, page 9: “The record reflects that the Examiner concurred
with Appellants’ definition of ‘specifically binds’. . . . The term was defined as the
binding of an antibody to a particular polypeptide and the antibody binds to that
particular polypeptide but does not substantially bind to any other polypeptide.”
“Under 35 U.S.C. § 102, every limitation of a claim must identically appear
in a single prior art reference for it to anticipate the claim.” Gechter v. Davidson,
116 F.3d 1454, 1457, 43 USPQ2d 1030, 1032 (Fed. Cir. 1997). When
construing claim language, “every limitation positively recited in a claim must be
given effect in order to determine what subject matter that claim defines.” In re
Wilder, 429 F.2d 447, 450, 166 USPQ 545, 548 (CCPA 1970).
Here, the examiner and Appellants agree that the claims are limited to
antibodies that “specifically” bind to Nsp1 (claim 60), Nsp2 (claim 61), or Nsp3
(claim 62), and they agree on the interpretation of that limitation: the antibodies
bind to the recited polypeptide “and not substantially to any other polypeptides.”
Appeal Brief, page 6; see also Examiner’s Answer, page 9.
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