Appeal No. 1997-3389
Application No. 08/449,956
With regard to the claimed phosphate concentration of
"less than about 5 weight percent" (claim 1), we observe that
Boucher, (col. 2, l. 26) broadly teaches a phosphate range of
"from about 5 to 70 weight %". We have underlined the term
"about" in the aforementioned citations since, in our view,
the term suggests that the claimed phosphate range can be
fairly taken to read on the lower end of the range disclosed
by Boucher. See In re Ayers, 154 F.2d 182, 185, 69 USPQ 109,
112 (CCPA 1946). Further, as pointed out by the examiner, the
amount of phosphate employed in working examples IVA and IVB
appears to be within the scope of the instant claims.
We further observe that the open-ended term "comprising",
as used in claim 1, does not preclude addition of other
components such as the fatty acid salt coating of Mazzola.
We recognize that appellants rely upon data presented in
their specification (pages 16-18; Example II), and the Mazzola
Declaration filed in related application 08/436,182, as
evidence of nonobviousness. This evidence appears to be
identical to that relied upon in Appeal No. 97-3332.
Accordingly, we hold that the evidence proffered by appellants
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