Appeal No. 2002-0322
Application 08/681,870
132 F.2d 1014, 1019, 56 USPQ 379, 384 (CCPA 1942); cf. Exxon Chem. Pats., 64 F.3d at 1555,
35 USPQ2d at 1802; Exxon Chem. Pats., 64 F.3d at 1555, 35 USPQ2d at 1802; Baxter, supra.
The use of the open-ended terms “comprising” and “including” in connection with the
ingredients of individual copolymers further opens the copolymers to additional ingredients as
well. While in general, the claim language “up to” in a claim is interpreted to read on zero (0),
see In re Mochel, 470 F.2d 638, 640, 176 USPQ 194, 195 (CCPA 1972) (“As this Court has held,
the phrase “up to” of claim 2 includes zero as the lower limit. [Citations omitted.]”), in this
instance, it is apparent from the specification that the specified ethylene copolymer must include
some amount, no matter how small, of alkyl acrylate units, and thus in light of the specification
we interpret the phrase “up to” in the appealed claims to require that the ethylene copolymer
include some amount, no matter how small, of alkyl acrylate units.
One of the additional components which can be included is specified to be an acid
copolymer that can be present in the amount of about 0 to 90 parts by weight, and thus as
specified is an optional component. In appealed claim 1, the acid copolymer is neutralized to
some extent with a metal cation. In appealed claim 10, the acid copolymer includes about 1% to
about 30% parts by weight of carboxylic acid units of which about 10 to 90% are neutralized
with a metal cation. In appealed claim 9, the acid copolymer includes about 1% to about 30%
acrylic acid, and there is no requirement that the acrylic acid units of the copolymer are
neutralized to any extent.
Thus, the cover composition of each of appealed claims 1 and 10 can comprise only the
specified hydrolyzed and neutralized ethylene copolymer that contained alkyl acrylate groups,
and the cover composition of appealed claim 10 can comprise only the hydrolyzed and
neutralized ethylene copolymer that contained alkyl acrylate groups, both claimed compositions
otherwise comprising at least 10 parts by weight of this component and any other component that
is not limited to and need not include the recited neutralized acid copolymer. The cover
composition in appealed claim 9 can comprise only the specified ethylene copolymer that
contains certain alkyl acrylate groups per se and any other component that is not limited to and
need not include the recited acid copolymer per se, and the cover per se further including some
amount of the specified metal salt in any relationship other than in the specified composition.
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