Appeal No. 1997-4433
Application No. 08/414,381
710 F.2d 1544, 1548, 218 USPQ 385, 388 (Fed. Cir. 1983). As
so interpreted, it is clear that the appealed claim
requirement of “about 12% or less” does not encompass the 16%
EPDM concentration in Run 6 of the Briddell patent. This is
particularly evident in light of the appellants’ unambiguous
disclosure that their “about 12% or less” concentration is an
improvement, vis-à-vis peel strength, over the 16%
concentration of Briddell. Furthermore, we find nothing in
this applied reference which would have suggested lowering
patentee’s 16% EPDM concentration to a level of “about 12% or
less” as required by the appealed claims notwithstanding the
examiner’s contrary view.
In this latter regard, the examiner states that, “if one
were to formulate the rubbery blend [in Briddell’s
composition] of equal parts of each and utilize the lower
amount, i.e., 35% based on the total composition, then one
would have an amount of EPDM based on the total composition as
that instantly claimed” (answer, page 4). We agree with the
appellants, however, that patentee’s disclosure contains no
suggestion for such a modification and specifically no
suggestion of a rubbery blend comprising equal parts of the
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