Appeal No. 95-1628
Application 08/067,750
We have carefully reviewed the record on this appeal and
based thereon conclude that we cannot subscribe to either of
the grounds of rejection advanced by the examiner.
In so considering the record, we have, as an initial
matter, arrived at an understanding of the language of the
claims on appeal and, as a matter of law, pronounce the
meaning of that language. Markman v. Westview Instruments,
Inc., 52 F.3d 967, 979-81, 34 USPQ2d 1321, 1329-31 (Fed. Cir.
1995)(in banc), aff’d, 116 S.Ct. 1284 (1996). In doing so, we
are mindful that we must give the broadest reasonable
interpretation to the terms of this claim consistent with
appellants' specification as it would be interpreted by one of
ordinary skill in this art. In re Morris, ___ F.3d ___, ____,
44 USPQ2d 1023, 1027 (Fed. Cir. 1997); In re Zletz, 893 F.2d
319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
We are of the opinion that the language of appealed claim
1 permits the claim to encompass any foamed plastic having
cells which contain one or more oligomers, which are more than
a dimer, and/or one or more polymers derived from a monomer
having a conjugated unsaturated carbon group and which is
capable of foaming the plastic, as of the point in time when
such a product is produced. Cf. Exxon Chemical Patents Inc.
v. Lubrizol Corp., 64 F.3d 1553, 1555-58, 35 USPQ2d 1801,
1802-05 (Fed. Cir. 1995). In addition, the transitional term
“comprising” would permit the cells of the foamed plastic to
contain unreacted monomer as well as other ingredients, such
as “radical polymerization initiators” and other oligomers and
polymers. See Exxon Chemical Patents, 64 F.3d at 1555, 35
USPQ2d at 1802; In re Baxter, 656 F.2d 679, 686, 210 USPQ 795,
802 (CCPA 1981). We observe in this respect that appellants’
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