Appeal No. 96-0126
Application 07/942,400
424 F.2d 1382, 1385, 165 USPQ 494, 496 (CCPA 1970) and In re
Steele, 305 F.2d 859, 862, 134 USPQ 292, 295 (CCPA 1962). In
this instance, however, it would be particularly desirable to
avoid the inefficiency of piecemeal appellate review. See Ex
parte Ionescu, 222 USPQ 537, 540 (Bd. App. 1984). Therefore,
in our discussion below, we will assess the examiner’s § 103
rejection as though appealed claim 1 properly recited the
equation for w as set forth on specification pages 8 and 10.
On the record before us, the composition defined by
appealed claim 1 does not appear to distinguish over the
composition disclosed by Ma. According to the appellants,
patentee’s composition requires a thickening agent which, it
is argued, is excluded by the claim language ?consisting
essentially of?. We cannot agree.
In the second full paragraph on page 12 of the
specification, the appellants disclose that their composition
?can optionally contain...propylene oxide/ethylene oxide
copolymers... in the range of from about 0.01% to about 5% by
weight based on the total weight of the composition?. This
disclosure leads us to the determination that the presence of
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