Appeal 2006-3259
Application 09/785,188
Appellants further contend that, to the extent Hino suggests omitting
methanol from Uo’s method, a “macroporous gel like Uo’s without
methanol is neither described nor suggested by Uo,” particularly since
“every recipe for macroporous silica gels in the art of record . . . requires
toxic gelation conditions.” Reply 5. See also Br. 10.
Given these contentions, the single issue before us with respect to
claim 26 is, would one of ordinary skill in the art have been motivated to
combine the teachings of Uo and Hino to arrive at the method of claim 26?
FINDINGS OF FACT
Interpretation of Claim 26
Claim 26 uses the term “vegetative cell,” a term not defined in the
specification. We interpret the term to mean a nonreproductive cell, i.e., a
cell that is “engaged in nutrition and growth rather than sexual reproduction,
and excluding dormant forms.” Oxford Dictionary of Biochemistry and
Molecular Biology 680 (Oxford University Press 1997).
Claim 26 also uses the term “macropores” without providing a
definition in the specification or in the claims. We interpret this term to
mean “any pore . . . whose width is greater than about 50 nm.” Id. at 392.
Claim 26 does not require that the recited “vegetative cells” retain any
particular activity level. See, e.g., Answer 6, 11.
Due to “comprising language,” claim 26 does not exclude additional
components, such as methanol, see id. at 11, and thus includes a method in
which the alcohol is not removed prior to adding the cells. Claim 26. See
also, e.g., Spec. at 4; Answer 6.
6
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