Appeal No. 2005-2235 Page 4
Application No. 09/038,894
[a]s used herein, cell activation refers to changes in and
interactions among circulating white blood cells, including
leukocytes, cells lining blood vessels, including endothelial cells,
and platelets. These changes are evidenced by increased
“stickiness” of cells, changes in shapes of cells, free radical
production and release of inflammatory mediators and enzymes.
“The test for definiteness is whether one skilled in the art would
understand the bounds of the claim when read in light of the specification.”
Miles Laboratories, Inc. v. Shandon, Inc., 997 F.2d 870, 875, 27 USPQ2d
1123, 1126 (Fed. Cir. 1993). We read in light of appellants’ specification,
we understand the first step of claim 32 to refer to assessing cell activation
in a subject which is evidenced by increased “stickiness” of cells, changes
in shapes of cells, free radical production and release of inflammatory
mediators and enzymes. As appellants’ specification explains (page 17),
while
[c]ell activation is necessary for normal human immune defense
mechanisms, … inappropriate or excessive activation leads to or
participates or intensifies many diseases, including, but not limited
to: arthritis, atherosclerosis, acute cardiovascular incidents,
Alzheimer’s Disease, hypertension, diabetes, venous insufficiency,
autoimmune disease and others. Cell activation is a major
contributor to rejections [sic] processes in organ transplants, and to
predisposition to poor outcomes in trauma and high[-]risk surgeries.
Accordingly, as set forth in claim 32, if cell activation is “elevated,” then the
second step of the method is performed – administering [cell2] activation
2 Appellants acknowledge the typographical error in the omission of the word “cell” before the
word activation. Reply Brief, pages 14 and 15. We encourage the examiner and appellants’ to
work together to correct this oversight.
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