Appeal No. 2000-1836
Application 08/917,336
Reznik WO 95/07857 Mar. 23, 1995
The examiner has rejected appealed claims 1 through 8 and 19 under 35 U.S.C. § 103(a)
as being unpatentable over Reznik.1
Appellants state in their brief (page 3) that the appealed claims are “individually
patentable.” Thus, we decide this appeal based on appealed claims 1 through 8 and 19. 37 CFR
§ 1.192(c)(7) (2000).
We affirm.
Rather than reiterate the respective positions advanced by the examiner and appellants,
we refer to the examiner’s answer and to appellants’ brief for a complete exposition thereof.
Opinion
We find that, when considered in light of the written description in the specification as
interpreted by one of ordinary skill in this art, see, e.g., In re Hyatt, 211 F.3d 1367, 1372, 54
USPQ2d 1664, 1667 (Fed. Cir. 2000); In re Morris, 127 F.3d 1048, 1054-55, 44 USPQ2d 1023,
1027 (Fed. Cir. 1997), In re Zletz, 893 F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir.
1989), the plain language of appealed claim 1 specifies a hydrogen containing purified water
having a pH of from 7.2 to about 7.3 which includes at least 0.1 ppm electrolytic dissolved
hydrogen and sodium phosphate or anode water. The claim language “hydrogen containing
purified water including” opens the composition to the addition of any other ingredients in
amount which do not prevent the water from being characterized as “purified,” since the term
“including” has long been held to be an open-ended term synonymous with the open-ended term
“comprising.” See generally, In re Bertsch, 132 F.2d 1014, 1019, 56 USPQ 379, 384 (CCPA
1942); cf. In re Baxter, 656 F.2d 679, 686-87, 210 USPQ 795, 802-03 (CCPA 1981) (“As long as
one of the monomers in the reaction is propylene, any other monomer may be present, because
the term ‘comprises’ permits the inclusion of other steps, elements, or materials.”). Appealed
claim 2, which is in original form and originally modified original claim 1 which did not recite
1 The examiner refers to the Office action of August 14, 1998 (Paper No. 9) for a statement of
the ground of rejection (answer, page 3).
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