Appeal No. 1996-0941
Application 08/091,421
pertinent to the present case, appellant has not established,
or even asserted, that omitting the aluminous cement from
their claimed binder would prevent the binder from being quick
setting. Indeed, the “comprising” transition term opens the
claim to other components. See In re Baxter, 656 F.2d 679,
686, 210 USPQ 795, 802 (CCPA 1981). Appellant provides no
evidence that such components cannot be materials other than
aluminous cement which render the binder quick setting.
Appellant argues that his specification shows that the
claimed binding agent provides compressive strengths which are
superior to those of Braunauer (brief, page 7). The evidence,
however, is not commensurate in scope with appellant’s claims
which, as stated above, include an amount of aluminous cement
of zero. See In re Grasselli, 713 F.2d 731, 743, 218 USPQ
769, 778 (Fed. Cir. 1983); In re Clemens, 622 F.2d 1029, 1035,
206 USPQ 289, 296 (CCPA 1980).
For the above reasons, we affirm the rejections under 35
U.S.C. § § 102(b) and 103.
DECISION
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