Appeal No. 2005-1344 Page 13
Application No. 08/468,610
greater than a 42 mM sodium chloride solution, while the term “low ionic
strength” means an ionic strength less than a 42 mM sodium chloride solution.
Taken together, as appellants assert the limitation should be read, the limitation
reads on any ionic strength. In our opinion, if the limitation is read according to
appellants’ assertion, the references to “high” and “low” as the terms appear in
appellants’ claims become meaningless. When read in the alternative, however,
a high ionic strength would be anything equal to, or greater than a 42 mM sodium
chloride solution, while a low ionic strength would be anything below a 42 mM
sodium chloride solution. Stated differently, unlike appellants’ construction of the
phrase, the terms “high” and “low” appear to be meaningful only when read in the
alternative. In addition, unlike the examiner’s construction of the term, a high
ionic strength is any ion concentration that provides a conductivity greater than or
equal to 4.7 millimho.
Further, we direct attention to appellants’ apparent misunderstanding of
their disclosure. According to appellants (Brief, page 8), “[a]pplicants, … define
‘high ionic strength’ to be a sodium ion concentration of about 250 mM or above.”
This is incorrect. According to appellants’ specification (page 18), a “high ionic
strength” “means an ionic strength greater than or equal to that required to
provide a conductivity of 4.7 millimho (milliSeimens (mS/cm2)).” While a sodium
ion concentration of about 250 mM would be an example of such an ion
concentration, as we understand it from appellants’ co-pending application, a
conductivity of 4.7 millimho corresponds to a 42 millimolar (mM) sodium chloride
solution. Thus any sodium chloride concentration of 42 mM or above would be
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