Appeal No. 95-1999
Application No. 08/047,381
intended use is directed to the product." See the Examiner’s
Answer, page 6.
We disagree. Claim 39 is drawn to a dental composition
containing components present in such amounts and having the
requisite characteristics of forming a hard and inflexible
consistency upon polymerization. The proviso the examiner
refers to is not a statement of ultimate intended utility. It
describes, in functional language, indispensable
characteristics that must be present in the monomeric
components required by the claimed invention. Claim 39
provides in essence that one may choose specific monomers from
among those falling within the requirements of the claim
provided, however, that the monomers chosen result in a
temporary dental restorative material having a hard and
inflexible consistency. Hence the proviso of claim 39
constitutes both a further description and a limitation of the
initial components chosen. The proviso of claim 39 has been
treated by the examiner as directed only to the final product.
We find that neither the dental limitations nor the proviso of
claim 39 can be ignored. In view of our findings, the
examiner's legal conclusion of obviousness is not supported by
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