Appeal No. 2005-2414 3
Application No. 10/241,763
OPINION
For all of the reasons expressed by the examiner, and for the additional reasons set
forth infra, we will sustain all of the rejections of record.
With respect to claim 1, the appellants take issue with the examiner’s selection of
breast volume as a biomarker and the selection of the quantification of the tumor surface
as a derivation of a quantitative measurement of the biomarker (brief, pages 5 and 6).
According to the appellants (brief, page 5), the examiner’s “statements are mutually
exclusive and cannot both be true.” Notwithstanding the examiner’s mixing of volume and
surface, we find that the examiner’s finding of facts (answer, pages 3 and 4) also points
out tumor extent/shape in Gilhuijs (column 1, lines 14 through 16) as a biomarker. Gilhuijs
derives “at least one quantitative measurement of the at least one biomarker” by
“quantification of the tumor surface” (column 6, lines 61 through 64). We additionally find
that the “radius” is also a quantitative measurement of the extent/shape tumor biomarker
and is also a quantitative measurement of the malignant lesion with a necrotic core
biomarker1 (column 6, lines 19 through 36). Thus, the anticipation rejection of claim 1 is
sustained.
1 The biomarkers in Gilhuijs are found in the list of biomarkers of claim 10, and the quantitative
measure in Gilhuijs is found in the list set forth in claim 11.
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