Appeal No. 1998-1306
Application 08/429,326
claimed free moisture content of the clay in the appealed claim 1
composition does not distinguish over the clay in the composition of
Brooks.
On the one hand, the examiner points to no teaching (and
we find none independently) in the Brooks patent concerning
the free moisture content of patentee's clay. On the other hand, the
appellants' specification discloses the deliberate step of drying
their clay in order to obtain a particular free moisture level (see
specification, page 10, lines 28-35) in order to preserve optimum
effectiveness and shelf life of their composition (see specification,
page 9, lines 20-29). Thus, the record before us contains nothing to
support the examiner's proposition that the respective clays used in
the here-claimed composition and in the composition of Brooks contain
the same free moisture content. However, this record clearly
reflects that the here- claimed free moisture content range of clay
in the appealed claim 1 composition is the consequence of a drying
step and thus is presumably less than the free moisture content of
the clay used in Brooks' composition (i.e., because patentee does not
teach subjecting his clay to a drying step).
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