Appeal No. 2003-2147
Application No. 09/392,243
42. If, on the other hand, the concentration of the peroxide-containing
compound remaining in the mucosa product, when determined using
KMnO4 titration, is “undetectable” and the particular subject matter does
entail “mixing the peroxide-containing compound and the mucosa tissue to
form a mucosa product,” as claim 42 requires, then the person knows the
particular subject matter falls within the literal scope of claim 42.
Brief, page 39.
In our view the examiner has failed to establish a prima facie case of
indefiniteness. In our view, the examiner has failed to fully analyze the claim 42
language in view of the application disclosure.
For example, Example 1 of the specification states that first porcine mucosa was
heated. A specific amount of hydrogen peroxide was added to the solution followed by
mixing for 10 minutes. “The color of the solution changed so that it was similar to the
color of a whey protein solution. The solution was analyzed to determine whether there
was any hydrogen peroxide remaining. This was carried out by adding 0.01 M KMnO4
to the diluted solution (1:150) and observing whether a color change took place. This
test indicated that there was no hydrogen peroxide remaining in the product.”
Specification, page 5.
Upon review of this portion of the specification, and the other examples 2-8 set
forth in the specification, in our view, one of ordinary skill in the art would have been
provided with an amount of hydrogen peroxide and an equivalent, to be added to the
solution. This amount of hydrogen peroxide, according to the examples, provides for an
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