Appeal No. 1999-2488
Application No. 08/841,027
composition.” Consistent with the representations made in this
table, the appellants then go on to argue that the applied
references contain no teaching or suggestion to remove the
diphosphate fire retardant or the low molecular weight halogen
containing fire retardant of the Yang and Buysch compositions
respectively in order to thereby obtain their inventive
composition wherein only one fire retardant component, namely, a
monophosphate fire retardant, is used. These arguments are
unpersuasive.
This is because, contrary to the appellants’ apparent
belief, the subject matter on appeal simply is not limited in the
manner argued in the brief. Specifically, neither of the
appealed independent claims excludes diphosphate fire retardant
or low molecular weight halogen containing fire retardant or
limits the recited composition to only one fire retardant
component as implicitly presupposed by the appellants’ arguments.
In this regard, we emphasize that the appealed independent claims
9 and 10 employ the term “comprising” which permits the inclusion
of other steps, elements or materials such as the aforementioned
diphosphate fire retardant and low molecular weight halogen
containing fire retardant. In re Baxter, 656 F.2d 679, 686,
210 USPQ 795, 802 (CCPA 1981).
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