Appeal 2007-1159
Application 09/839,946
as much as possible, during the administrative process.” In re Zletz, 893
F.2d 319, 322, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
Claim 50 uses the term “about” in defining how much uricase must be
in tetrameric form in order to be encompassed within the scope of the claim.
We first look to the Specification to determine whether Appellants have
acted as their own lexicographer in defining “about.” See Merck & Co., v.
TEVA Pharmaceuticals USA, Inc., 395 F.3d 1364, 1369-70, 73 USPQ2d
1641, 1646 (Fed. Cir. 2005). Our review of the Specification, however, does
not reveal that “about” has been defined in a way different from its ordinary
meaning. We thus interpret “about” consistent with its ordinary meaning.
See id. “About” may be defined by its ordinary and accepted meaning of
“approximately.” See id., 395 F.3d at 1372, 73 USPQ2d at 1648. Turning
to “approximately,” that term may be defined as “nearly exact, not perfectly
accurate or correct.”2 We thus interpret the phrase “wherein at least about
90% of said uricase is in a tetrameric form” as encompassing a range of
uricase around 90%, and thus any prior art uricase preparation that contains
almost 90% of the uricase in tetrameric form is encompassed by claim 50.
Lee teaches that porcine liver urate oxidase was obtained
commercially and purified to homogeneity, citing footnote 8 (Lee, p. 1289).
Footnote 8 states that porcine liver oxidase was obtained from Sigma, and
that murine urate oxidase was purified to homogeneity using the method of
Conley (1979). Conley (1979) teaches purification of uricase from
2 Dictionary.com. Dictionary.com Unabridged (v 1.1). Random House, Inc.
http://dictionary.reference.com/browse/approximately (accessed: June 28,
2007).
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