Appeal 2007-2028
Application 11/058,147
that the term “litter” is not limited to particulate materials typical of
commercial cat litter. Thus, Benjamin’s absorbent pad is encompassed by
the term “animal litter,” when claim 1 is given its broadest reasonable
interpretation in light of the Specification.
Appellants argue that Benjamin does not “disclose, teach or suggest”
the claimed particle size distribution (Br. 15). Rather, Appellants argue,
“[t]he disclosed examples of hydrogels to be used as a component of a litter
box pad include silica gels,” whereas the “[a]bsorbent solid materials
suitable for use as animal litters having particle sizes ranging from 2.5 to 13
mm are disclosed in Benjamin” (id. at 15-16). Appellants argue that they
have demonstrated that the claimed range of particle sizes is critical to the
invention (Reply Br. 10-11, 14-15.)
We are not persuaded by these arguments. We agree with Appellants
that Benjamin discloses two discrete products. (See Benjamin, col. 1, ll. 60-
62 (“This invention relates to a solid absorbent material useful as an animal
litter, and to a flexible absorbent pad useful as a liner in animal litter
boxes.”).) We also agree that Benjamin discloses that, in the “animal litter”
material, “[p]article sizes typically range . . . from about 0.25 cm to about
1.3 cm” (id. at col. 3, ll. 18-27).
However, as discussed above, Benjamin also discloses that the
flexible absorbent pad contains discrete particles which may be silica gel,
and that preferred particles have a size of about 50 microns to about 1 mm
(id. at col. 6, ll. 5-8). Thus, Benjamin suggests a silica gel particle-
containing composition useful as litter material that contains particles having
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