Appeal No. 2005-1344 Page 9
Application No. 08/468,610
8.5.” Thus, contrary to appellants’ assertion (Brief, page 3), according to
appellants’ specification (page 29, lines 24-28), resins of the present invention
become electrostatically charged in a pH range of from about 5 to 9.
In addition, despite the examiner’s construction of the complex set forth in
appellants’ claimed invention (Answer, page 3), wherein the resin is
electrostatically uncharged at a pH from 5 to 9, the examiner’s anticipation
rejection goes counter to this construction of the claimed invention. Specifically,
as we understand it, the examiner applies Boardman as an anticipatory reference
because it teaches a target protein tightly bound to an electrostatically uncharged
resin at pH 5, and desorbed from an electrostatically charged resin at pH 6-7.
See Answer, page 5.
On reflection, we are left with a construction of the claimed invention by
the examiner and appellants that appears to be contrary to both appellants’
specification and the examiner’s application of prior art.
50 percent or more
According to appellants’ claimed invention (see e.g., claim 1), “50 percent
or more of the target protein or peptide in an aqueous medium binds to the resin
when the aqueous medium has either a high or a low ionic strength.” As we
understand it, the claims are drawn to a resin-protein/peptide complex.
Accordingly, the intent of the last clause of, for example, claim 1, is less than
clear. As it now stands, it is our opinion that the clause is open to at least two
different interpretations. First, that 50 percent or more of the target protein or
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