Appeal No. 2006-0148 Page 4
Application No. 09/933,309
In contrast to the claims in Erlich, instant claim 16 recites the positive, active
steps of “regenerating [a] patient’s involuted thymus; injecting the immunological
equivalent of the tissue or organ to be transplanted . . .; and then transplanting said
organ or grafting said tissue.” Therefore, the claim is not indefinite under the rationale
of Ex parte Erlich.
The examiner also rejected claim 16 “because the term ‘immunological
equivalent’ is a relative term which renders the claim indefinite. The term
‘immunological equivalent’ is not defined by the claim, the specification does not provide
a standard for ascertaining the requisite degree, and one of ordinary skill in the art
would not be reasonably apprised of the scope of the invention.” Examiner’s Answer,
page 4.
Appellant argues that “[t]hose having ordinary skill in the art would not regard the
expression ‘immunological equivalent’ as a relative term. A material either is or is not
the immunological equivalent of the organs and/or tissue grafted into the patient. In
other words, the material either does or does not induce an immunological effect
equivalent to the tissue or organ to be transplanted.” Appeal Brief, page 6.
We will reverse this basis of the rejection as well. The specification states that
[a]fter thymic regeneration, the thymus should be imaged . . . to verify
regeneration and thymic location. . . . At this time, a surgeon skilled at
thymic biopsy retrieval injects into the thymus an appropriate sample of
the tissue or organ to be transplanted later, or injects any other donor-
specific cells or antigens (for example bone marrow cells) that are the
immunological equivalent of the tissue itself in stimulating deletion or
anergy of the cells otherwise responsible for later rejecting the
transplanted tissue or organ.
Page 15. [Emphasis added.]
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