Appeal No. 2007-1027 Page 3
Application No. 10/134,575
stain” as “any chemically-based stain useful for histologic analysis that is not an
immunohistochemical stain, or an in situ hybridization stain.” Specification,
page 3, lines 7-9.
New teaches that “[n]eutral red stain is actively taken up by viable cells.”
New, column 9, line 33. Since New teaches neutral red is a chemically-based
stain useful for histologic analysis, and not an immunochemical nor in situ
hybridization stain, we find that neutral red stain is a “special stain” within the
scope of appellants’ claimed invention. We recognize appellants’ assertion that
neutral red is a pH indicator not a stain. Brief, page 4, footnote 1. However,
since New teaches the use of neutral red as a stain (same (column 9, lines 33-
41) we will do the same. We recognize, however, appellants’ assertion that while
New refers to neutral red as a stain “it is clear from the context [in New] that
neutral red is not actually staining the cells as the term is normally used in the
histology art.” Brief, page 5. According to appellants (id.), “[t]o be ‘useful for
histologic analysis,’ a chemical must have the attribute of permanently attaching
itself to some tissue.” We are not persuaded by this assertion. We find nothing
in appellants’ definition of a “special stain” that requires the stain to have the
attribute of permanently attaching itself to some tissue. To the contrary, other
than defining a “special stain” by what it is not - not an immunohistochemical
stain, or an in situ hybridization stain – appellants’ definition simply requires the
stain to be any chemically-based stain useful for histologic analysis. As New
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characterizes neutral red as a stain in their study, we find no evidence to suggest
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