Appeal No. 2006-1517 Page 4
Application No. 09/976,423
Thus, claim 72 is directed to a kit comprising “reagents” and “a computer
program.” The claim specifies that the reagents in the kit are “configured such that
when exposed to a sample containing target nucleic acid from a perioperative subject,
. . . [they] are sufficient to detect the presence or absence of variant alleles in two or
more genes associated with two or more conditions selected from [a group of specific
genes].”
As we interpret the claim language, it requires reagents that are sufficient to
detect the presence or absence of variant alleles in at least two of the recited genes
when exposed to a sample containing a target nucleic acid. That is, the reagents in the
kit can be combined with a sample from a perioperative subject and processed to detect
the presence of variant alleles in the specified genes, without the addition of other
reagents. This interpretation is required by the claim language: if reagents not included
in the kit were required to detect the presence of variant alleles in the recited genes,
then the kit would not comprise reagents “sufficient to detect” those alleles.
The other passages in part (a) of claim 72 do not constitute limitations of the
claimed kit. The passage stating that the “subject [is] a patient scheduled for a surgical
procedure that has not yet completed said surgical procedure” recites nothing more
than an intended use of the claimed kit. That is, the specification states that the kit is
intended to be used shortly before or during surgery (see page 9, lines 3-11) but that
intended use does not limit the components of a kit: the same components would be
required to detect the presence of the recited alleles regardless of whether the kit was
used perioperatively.
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