Appeal No. 2002-0928
Application 09/315,251
claims because it is the claims which define the protection for
which appellants seek a patent. United Carbon Co. v. Binney & Smith
Co., 317 U.S. 228, 232, 55 USPQ 381, 383-384 (1942) (citing General
Electric Co. v. Wabash Appliance Corp., 304 U.S. 364, 369, 37 USPQ
466, 468-469 (1938); In re Zletz, 893 F.2d 319, 321, 322, 13 USPQ2d
1320, 1322 (Fed. Cir. 1989); SRI Int'l. v. Matsushita Elec. Corp.,
775 F.2d 1107, 1121, 227 USPQ 577, 586 (Fed. Cir. 1985) (en banc).
The claimed method is one "for forming a nanostructured
coating." The terminology "nanostructured coating" as it would have
been understood by a person of ordinary skill in the art at the
time appellants made their invention and as defined by appellants
at page 1 of their specification denotes more than a mere particle
size. The terminology suggests a particular structure at the atomic
or molecular level for the coating obtained by the claimed method.
Thus, we interpret claim 1 as a method which requires that the
coating obtained have a particular structure and a particular size,
that is, on the order of a nanometer.
The steps recited in claim 1, except for the use of ultrasound
to form a solution having dispersed therein nanostructured
particles, read on what appear to be the conventional steps used in
the prior art methods of spray drying or plasma spraying to form
coatings. Nevertheless, claim 1 requires that the coating obtained
by the recited steps possess a nanostructure and claim 1 also
requires dispersing nanostructured materials in the liquid to be
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