Appeal No. 2006-1563
Application No. 09/839,778
Phillips v. AWH Corp., 415 F.3d 1303, 1323, 75 USPQ2d 1321, 1334 (Fed. Cir. 2005).
See, also Agfa Corporation v. Creo Products Inc. (Fed. Cir., 05-1079, 6/26/2006).
Therefore, we do not read the exemplified time frame of the assay of one to two minutes
from the specification into the claims.
In our view, when the claims are interpreted consistently with the specification
and given their broadest reasonable interpretation, appellants' claim term “substantially
simultaneously” reads on Jackowski’s definition of simultaneous, i.e., a shortened
period of time.
In response, appellants argue that, in Jackowski, “the term ‘simultaneous’ is not
used… to indicate that analysis of different analytes occurs concurrently, but that the
analysis occurs within a given period of time.” Brief, page 8. Thus appellants argue
that Jackowski is limited to determinations that occur at "different points in time" that
correspond to different assays conducted on different parts of a single sample. Id.
The examiner finds, however, that "the term 'simultaneous' as used by Jackowski
encompasses a concurrent evaluation of the sample, because Jackowski indicates that
the term 'simultaneous' includes an evaluation within a given period of time (col. 22,
lines 8-9), and a concurrent evaluation is within a given period of time” and does not
exclude concurrent analysis. Answer, page 7. In agreement with the Examiner, we
note that the claims before us do not require concurrent evaluation, they require
"substantially simultaneous" evaluation.
Appellants further argue that "Jackowski neither expressly nor inherently
describes ‘continuing a substantially simultaneous determination’ of the presence of one
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