Appeal 2007-0136
Application 90/006,222
and vanadium carbides and alloys and mixtures thereof, the
sintered carbide pellets and the cast carbide pellets being
generally spherical; and
the balance of the hardfacing composition being matrix
metal, a portion of the matrix metal being in the form of a tube
filled with the sintered and cast carbide pellets.
The principal differences between the two claims is that claim 1
requires a specific weight-percentage for the carbide-pellet moiety, while
claim 19 requires that a portion of the matrix-metal moiety be in the form of
a tube filled with the carbide pellets.
An ambiguity exists between the preamble, which uses an open
formulation ("composition comprising"), and the last limitation, which
requires "the balance of the hardfacing composition [to be] matrix metal".
While claims are before the agency, they are given their broadest reasonable
construction.7 When there is a tension between an open and closed
construction, we must give the claim the broader construction absent some
clear indication to the contrary.8 Consequently, despite the "balance"
limitation, we understand the claimed compositions to be open to the
inclusion of other ingredients consistent with the purpose of the
composition.
The "granules" limitation (only in claim 1) is also open-ended. The
limitation begins "at least 60% by weight of the composition being granules
7 In re Bigio, 381 F.3d 1320, 1324, 72 USPQ2d 1209, 1210-11 (Fed. Cir.
2004) (generally); In re Yamamoto, 740 F.2d 1569, 1571, 222 USPQ 934,
936 (Fed. Cir. 1984) (reexamination); accord In re Morris, 127 F.3d 1048,
1057, 44 USPQ2d 1023, 1030 (Fed. Cir. 1997) (burden of precise claim
drafting lies with applicant); see also Amgen Inc. v. Chugai Pharm. Co. Ltd.,
927 F.2d 1200, 1218, 18 USPQ2d 1016, 1031 (Fed. Cir. 1991) (noting that
the closer the prior art is, the greater the need for precision).
8 In re Crish, 393 F.3d 1253, 1257, 73 USPQ2d 1364, 1367 (Fed. Cir. 2004).
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