Appeal No. 2000-1862
Application 08/834,061
The body of appealed claim 37 further specifies that the rare earth-doped sol-gel glass
monolith product may contain “constituents . . . comprising selected” such that it still “exhibits a
transmittance in the far UV range so at least one spectral feature of the rare-earth dopant in the
far UV range is discernable and corresponds to a control value to allow the sensor assembly
receiving light having a wavelength corresponding to the control value to be calibrated” in the
optical instrument recited in the preamble of the claim (emphasis supplied). Thus, as the claim
stands of record, the constituents of the rare earth-doped sol-gel glass monolith product must
comprise at least a sol-gel glass doped with a rare earth dopant such that at least one spectral
feature of the rare earth dopant in the “far UV range” is discernable and can be used as a control
value to calibrate the optical instrument.
The transitional term “comprising” and the further open-ended term “comprising” with
respect to the “constituents . . . selected,” opens the claimed product to include any constituent in
the sol-gel glass or in the rare-earth dopant which does not interfere with the detection of at least
one spectral feature of the rare-earth dopant in the “far UV range” for calibration purposes. See
Exxon Chemical Patents Inc. v. Lubrizol Corp., 64 F.3d 1553, 1555, 35 USPQ2d 1801, 1802
(Fed. Cir. 1995) (“The claimed composition is defined as comprising - meaning containing at
least - five specific ingredients.”); 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.”).
Thus, the appealed claims encompass any rare earth-doped sol-gel glass monolith
products based on different types of sol-gel glass, that contains any amount of a rare-earth dopant
which will provide at least one spectral feature in the “far UV range,” and are prepared by any
appropriate process (see specification, e.g., page 7, line 20, to page 10, line 6, and page 29, lines
3-6). While the transmittance of the sol-gel glass is not specified in claim 37, the transmittance
can range from “about 50% at about 250nm” as specified in appealed claim 7.
The concentration of the rare-earth dopant is also not specified in appealed claim 37. In
appealed claim 5, the “concentration . . . is in the range from about 6% to about 10%,” which, as
pointed out by the examiner, does not specify the units, e.g., mole % or weight % (answer, pages
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