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[dab2d]

There is this claim and I am trying to determine what it means.


"wherein a mixture of the 1 and the 2 comprises a mixture selected from the group consisting of X and Y, A and B and C, J and K and F,....

wherein the C is present in an amount of 10% by weight"

This clause was added during prosecution and is at the end of the claim. 

So does it limit the just that one mixture to which it refers or the entire claim?

The file history indicates that it was intended to only limit the one mixture, but does that make it so.

[klaviernista]

If I were rendering a full blown opinion on this case, this is a situation where I would spend significant time construing the language of the claim in question.

That means:

1.  Analyze the plain meaning of the claim language;
2.  Analzye the specification and prosecution history (intrinsic evidence) and determine its impact on the meaning claim language; and
3.  If analysis based on #1 and #2 is still inconclusive, resort to extrinsic evidence to help you construe the claim language.

Based on the language you quoted (and this is meaningless, given that I don't have all the info in your case), I would argue that the plain meaning of the claim language requires the mixture of 1 and 2 to be a mixture of A, B, and C, wherein C is present in an amount of at least 10% by weight.  Why?  Because according to the plain meaning of the claim, the markush clause defines specific combinations as individual entries in a group, only one group includes C, and C is required to be present in at least 10 weight %. Note that my opinion re: the construction of this claim would likely be different if the claim language instead recited:

"wherein a mixture of the 1 and the 2 comprises a mixture selected from the group consisting of X and Y, A and B and C, J and K and F,....

wherein if the mixture of 1 and 2 is a mixture of A, B, and C, the C is present in an amount of 10% by weight"

[dab2d]

klaviernista,

Thank you for your reply. That was my thought from the plain reading of the claim. However, how much does the prosecution history change the plain reading if they made it clear that they were only trying to limit that combination. It is clear I have to go to my Landis, but why can't it just be cut and dry.