Appeal No. 2006-3223 Page 2
Application No. 10/663,352
Id., page 1, lines 17-19. “[T]hese bacteria typically will multiply on the bristles between
uses.” Id., page 1, lines 20-21. To address this problem, the instant application
provides a toothbrush which contains a sustained-release matrix loaded with an
anti-microbial agent that kills bacteria. Id., page 2, lines 13-15; page 4, line 4-5.
Colorants can also be included which leach from the sustained release matrix over time,
providing an indication of brush wear and depletion of the anti-microbial agent. Id.,
page 2, lines 17-20; page 6, lines 14-30.
Claim construction
Claims 45-52 are appealed. These are all the pending claims in this application.
Because separate reasons for patentability were not provided for any of the individual
claims, all the claims stand or fall together. 37 CFR § 41.37(c)(1)(vi). We select claim
45 as representative of the appealed claims for the purpose of deciding this appeal.
45. A color-changing matrix comprising a layer including a mixture of
a water-insoluble polymer, a water-soluble polymer, and a water-leachable
colorant that leaches from the matrix when the matrix is exposed to water
to provide a change in color.
The first step of an anticipation analysis is claim construction because that is
necessary to understand the scope and meaning of the claims. See Gechter v.
Davidson, 116 F.3d 1454, 1457, 43 USPQ2d 1030, 1032 (Fed. Cir. 1997).
The Examiner construes the term “mixture” recited in claim 45 to cover
embodiments where the polymer and colorant components are arranged in different
sublayers of the claimed layer. Answer, page 5. Appellants argue that the Examiner’s
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