Appeal No. 95-0140
Application 08/002,528
“comprising” is “open” and permits the inclusion of elements
other than those specifically set forth in the claim terminology
in which it is used. See, e.g., In re Baxter, 656 F.2d 679, 686,
210 USPQ 795, 802 (CCPA 1981) and Moleculon Research Corp. v.
CBS, Inc., 793 F.2d 1261, 1271, 229 USPQ 805, 812 (Fed. Cir.
1986). In claim 24, the transitional phrase “consisting of”
links the preamble to the body of the claim and thus limits the
claim as a whole only to those elements specifically recited
therein. Cf. Mannesmann Demag Corp. v. Engineered Metal Prods.
Co., 793 F.2d 1279, 1282, 230 USPQ 45, 46 (Fed. Cir. 1986) (when
the phrase “consisting of” appears in one clause of the patent,
rather than in the preamble, it limits only the element set forth
in that clause; the phrase does not exclude all other elements
from the claim as a whole). Accordingly, the recitation in the
body of the claim 24 that the “fluidizing means comprises . . .”
(which permits the fluidizing means to include elements other
than those expressly recited) is inconsistent with the prior
recitation of “consisting of.” This being the case, claim 24
fails to set forth subject matter defined therein with the
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