Appeal No. 96-0126
Application 07/942,400
such polymers at such concentrations would not materially
affect the basic and novel characteristics of the appellants’
composition and thus would not be excluded by the ?consisting
essentially of? language of appealed claim 1. In re
Janakirama-Rao, 317 F.2d 951, 954, 137 USPQ 893, 896 (CCPA
1963) (?consisting essentially of? renders the claim open to
the inclusion of unspecified ingredients which do not
materially affect the basic and novel characteristics of the
composition). This is significant since the thickening
agents and corresponding concentrations disclosed by Ma
include the appellants’ afore-mentioned propylene
oxide/ethylene copolymers and concentrations (e.g., see lines
56 through 68 in column 5). Thus, notwith-standing the
appellants’ arguments to the contrary, it is clear to us that
appealed claim 1 includes, rather than excludes, these
thickening agent copolymers and concentrations of Ma.4
We recognize that Ma fails to disclose the contact angle,
surface tension and spreading wetting characteristics defined
4 Further regarding this issue, we emphasize that it is the appellants’ burden
of showing that components in Ma’s composition would materially affect the basic and
novel characteristics of the here claimed composition. In re De Lajarte, 337 F.2d 870,
873-874, 143 USPQ 256, 258 (CCPA 1964).
7
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