Appeal No. 1996-0941
Application 08/091,421
Appellant’s argument is not well taken because “less than
5 wt.%”, as recited in appellant’s claims, encompasses amounts
of aluminous cement including zero. See In re Mochel, 470
F.2d 638, 640, 176 USPQ 194, 195 (CCPA 1972); In re Egbert,
298 F.2d 947, 948, 132 USPQ 456, 458 (CCPA 1962).
Appellant relies upon In re Kirsch, 498 F.2d 1389, 182
USPQ 286 (CCPA 1974). In that case, the court stated that
“the amount of unreacted olefin in the reaction mixture being
maintained at less than 7 mole percent based on the unreacted
isobutane” was not vague and indefinite. See Kirsch, 489 F.2d
at 1393-94, 182 USPQ at 290. The court stated that “[t]he
imposition of a maximum limit on the quantity of one of the
reactants without specifying a minimum does not warrant
distorting the overall meaning of the claim, to preclude
performing the claimed process.” See Kirsch, 498 F.2d at
1394, 182 USPQ at 290.
In the present case, the relevant issue is written
description rather than claim clarity. Nevertheless, to the
extent that the language in Kirsch regarding distorting the
overall meaning of a claim to preclude the claimed process is
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