Appeal No. 1997-3354 Page 8
Application No. 08/469,809
composition will remain the same. In other words, the use does not change the composition.
Furthermore, if a patent were granted on the composition, those using it to wash dishes would infringe
the patent just the same as those using it to clean tile. Therefore, the intended use cannot serve to make
the claims to the composition patentable. See In re Pearson, 494 F.2d 1399, 1302, 181 USPQ 641,
644 (CCPA 1974)(Terms setting forth the intended use for an otherwise old composition do not
differentiate the claimed composition from those known in the prior art).
The Method
Claim 17 is directed to a method for removing greasy soil containing lime-soaps from hard
quarry or ceramic tile surfaces comprising applying to the surface a dilute aqueous alkaline cleaner of a
particular composition. The composition differs from that recited in claim 13 in that the source of
alkalinity is not limited to any particular compounds. The Examiner states in the rejection that
“[a]lthough Brumbaugh does not specify removing greasy soil from hard quarry or ceramic tile surfaces,
this intended use would have been well within the level of ordinary skill in the art because it is customary
for liquid dishwashing detergents not to be limited to cleaning dishes alone but to cleaning pots,
handwashable clothes, tables, kitchen/bathroom sinks and floors as well.” (Answer, page 4). Appellant
notes that the Examiner has not supported this statement with any factual evidence and argues that “the
entire detergent industry would consist of only one product if this were true.” (Brief, page 9).
However, Appellant does not directly challenge the veracity of the Examiner’s statement. Where, as
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