Appeal No. 2006-1563
Application No. 09/839,778
analyte in a sample ‘until the at least one analyte has been reliably determined to be
present in an amount indicative of a metabolic or disease state…’” Brief, page 9.
According to appellants, "the term 'continuing' in independent claim 1 clearly indicates
that analysis of the binding of at least one analyte occurs over a period of time rather
than at a single point in time." Again, we find no clear definition or explanation in the
specification of the term “continuing”. We interpret the term to have its ordinary
meaning, “to go on with a particular action”.2 Thus, the claimed assay is interpreted as
"continuing" until at least one analyte has been reliably determined to be present in an
amount indicative of the metabolic or disease state. See also, specification, page 25.
Jackowski continues the disclosed assay until the presence and amount of an analyte is
detected, and provides an "effective" "test to achieve a biochemical diagnosis within a
short period of time." Jackowski, Col. 8, lines 54-56.
The examiner also argues that, in contrast to appellants’ claim interpretation
(Brief, page 9), claim 1 "does not require that the kinetics of the binding reactions be
evaluated to provide an accurate determination of the presence, and optionally the
amount of an analyte.” Answer, page 9. We agree with the examiner that claim 1
merely requires that the assay "continues" until there is a reliable result based upon a
single analyte and does not exclude the assay disclosed by Jackowski.
The examiner further points out that Jackowski specifically states that its assay
detects and indicates 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
2 Webster's II New Riverside Dictionary, Riverside Publishing Co, Boston, MA, 1994, p. 305.
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