Appeal No. 1998-3187
Application No. 08/130,517
extender is used "at levels of from about 0 to about 5 php"
(column 7, line 19). While appellants contend that "about 0"
does not include 0, there is no question that the language of
Hager includes minor amounts of extender, e.g., 0.1 php. Since
the language "consists essentially of" excludes only those
materials which materially affect the basic nature of the
composition, it is incumbent upon appellants to demonstrate that
the inclusion of such minor amounts of extender would necessarily
change the basic nature and characteristics of the claimed
composition that is used to prepare the polyurethane foam. No
such evidence, however, is of record.
The examiner's rejection of claims 19-21 and 29-31 is
another matter. Claims 19 and 20 claim a foam having an IFD of
about 3 lbs. and about 5 lbs., respectively, and each of claims
19-21 calls for a polymeric MDI having an isocyanate index of
about 0.80. The vast majority of Hager's exemplified
polyurethane foams have an IFD considerably greater than about
11 lbs. (claim 21 on appeal), whereas the lowest exemplified
value for IFD is 12.25. Notwithstanding the general background
provided by Hager at column 1, line 59 - column 2, line 21, Hager
provides no specific teaching or suggestion how to obtain the
claimed IFD values of 3 lbs. and 5 lbs. Also, as pointed out by
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