Appeal No. 2006-1563
Application No. 09/839,778
see column 29, lines 51-63; and reporting said determination in an amount
indicative of the metabolic or disease state, see column 29, lines 51-63.
We agree that the specific portions of Jackowski pointed out by the examiner
evidence and support a prima facie case of anticipation. For example, Jackowski states
that (col. 8, line 57- col. 9, line 6),
in keeping with the temporal variability of patient conditions, the term
"simultaneous" as it may apply to the performance of such a cardiac test
and the retrieval of the results, for purposes of a diagnosis, is intended to
refer to the ability to achieve such chemical diagnosis of chest pain within
such shortened period, and therefore includes the measurement of the
multiple analytes or markers … whether performed within a single device
having capabilities for such conjoint detection and measurement or by
means of the use of individual such devices, each capable of detecting
and indicating the presence and amount of a particular marker or analyte,
provided that such detection and measurement are carried out within a
period of time in which the detection and measurement of one analyte is
meaningful with respect to the other analytes detected and measured.
Jackowski further describes the use of a troponin I cardiac marker. Col. 17,
Tables 2 and 3. In sum, Jackowski describes a method for the diagnosis of chest pain
using multiple analytes or markers, wherein the method measures the presence and
amount of an analyte, and indicates that such measurements are performed
simultaneously.
Appellants did not specifically define the term “simultaneously” in the
specification. During ex parte prosecution, claims are to be given their broadest
reasonable interpretation consistent with the description of the invention in the
specification. In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
The Federal Circuit has also repeatedly rejected the contention that depiction of a single
embodiment in a patent necessarily limits the claims to that depicted scope. See
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