Appeal No. 2001-0856
Application 09/143,947
specification.).” In doing so, we will give the terms used in the claims their ordinary meaning
unless another meaning is intended by appellant as established in the written description of the
specification, and the limitations of the specification, or any preferred embodiment or example
therein, will not be read into the claims. See generally, Morris, supra; see also Zletz, supra; In
re Priest, 582 F.2d 33, 37, 199 USPQ 11, 15 (CCPA 1978); In re Prater, 415 F.2d 1393, 1404-
05, 162 USPQ 541, 550-51 (CCPA 1969). In this respect, it is appellant’s burden to define the
claimed invention encompassed by the appealed claims in the specification. See Morris, 127
F.3d at 1055-56, 44 USPQ2d at 1029.
We interpret the terms “flexible or stretchable substrates” and “polymeric binder” to
encompass any substrate which is flexible or stretchable and any polymeric binder that will
interact with any solvent blowing agent boiling in the range of from 40 to 60°C to form a foam
that is fixed to the substrate surface, respectively. The term “solvent blowing agent boiling in the
range of from 40 to 60°C,” of course, encompasses any such solvent blowing agent that will
interact with a polymeric binder to form the foam. Thus, we do not read into the claim terms the
preferred materials that appellant relies on to distinguish the claimed process over the teachings
of Spek (brief, e.g., page 8; reply brief, e.g., page 2).
We have carefully reviewed the record on this appeal and based thereon find ourselves in
agreement with the supported position advanced by the examiner (answer, pages 3-4) that, prima
facie, one of ordinary skill in this art routinely working within the teachings of Spek would have
found therein the suggestion that any water insoluble solvent having a boiling point between -
40°C and +50°C can be used as a physical foaming agent in an aqueous polymer composition
containing a coagulable polymer latex in a process of impregnating a flexible textile cloth with
the composition and foaming the composition, with the reasonable expectation of obtaining a
product taught in the reference (e.g., col. 3, lines 12-31, and col. 4, lines 33-42). See generally,
Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807, 10 USPQ2d 1843, 1845-46 (Fed.
Cir. 1989); In re Lemin, 332 F.2d 839, 841, 141 USPQ 814, 815-16 (CCPA 1964).
The examiner finds that the solvent blowing agent boiling point range specified in
appealed claim 1 and taught in Spek “read on each other” (answer, page 4), and we agree that the
two ranges overlap. It is well settled that where the claimed ranges are encompassed by or
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