Appeal No. 2005-1117
Application 10/078,043
Appellants define “the term ‘proximate’ [to mean] . . . some position that is in close
physical proximity, to the locus of the pathogen in the organism” (id., page 8, ll. 11-15). The
ordinary dictionary meaning of “proximate” is “[c]losely related in space, time or order; very
near,” while that of “proximity” is “[t]he state, quality, or fact of being near or next; closeness.”4
While appellants use the phrase “pathogen in the organism” in their definition of “proximate,”
we find that they define “the term in-vivo [to mean] . . . in the interior or inside of a living
organism . . . or on the exterior or outside of a living organism . . . .” (id., page 7, ll. 13-15).
Thus, the in-vivo location of the pathogen in claim 1 can be in the interior and/or on the exterior
of the plant or plant part. Therefore, we agree with the examiner’s interpretation that the
structure of the claimed apparatus encompassed by claim 1 is any structure which places any part
of the apparatus “proximate,” that is, “near,” the in-vivo location of the pathogen in or on any
plant or part thereof so that it can perform the specified function, and with appellants’ argument
that one skilled in the art would recognize such structure.
Claim 11 specifies that the claimed apparatus must perform the function of treating acute
otitis media in any animal and comprises at least (1) any source of broad-spectrum
electromagnetic radiation in wavelength falling within the stated range at an intensity sufficient
to “achieve meaningful suppression in acute otitis media” while minimizing erythema on the
tympanic membrane of said animal,” and (2) any structure which permits “placement” of at least
any part of the apparatus “proximate to said tympanic membrane of said animal.” Appellants
disclose that “acute otitis media” is a form of “inner ear infections” in any mammal, but do not
identify a pathogen (specification, page 20, ll. 26-27). We note that “acute otitis media” is
generally defined as an infection involving the middle ear indicated by the presence of fluid
therein and can have the symptom, among others, of an inflamed tympanic membrane. See
generally, Stedman’s Medical Dictionary 1006.5 The electromagnetic radiation must strike the
4 See generally, The American Heritage Dictionary, Second College Edition 998; Webster’s II
New Riverside University Dictionary 948.
5 24th ed., Baltimore, Waverly Press, Inc. 1982.
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