Appeal No. 2002-2063
Application No. 09/635,093
We next turn to the transitional phrase “consisting
essentially of.” The term “consisting essentially of” is open to
unrecited ingredients which do not materially affect the basic and
novel properties of the claimed invention. PPG Indus. V. Guardian
Indus. Corp., 156 F.3d 1351, 1354, 48 USPQ2d 1351, 1353-54 (Fed.
Cir. 1998). The burden of showing that the basic and novel
characteristics of the claimed composition would be materially
effected is on appellants. In re De Lajarte, 337 F.2d 870, 874,
143 USPQ 256, 258 (CCPA 1964). In this case, no such showing has
been made that the novel properties, i.e., improved binder
properties or a reduction in emissions from the binder
composition, would not be achieved by the addition of the Furness
additional components. Accordingly, the additional components of
Furness are not necessarily excluded by the term “consisting
essentially of.”
Finally, we note that in proceedings before the U.S. Patent
and Trademark Office (PTO), unpatented claims must be interpreted
by giving words their broadest reasonable meanings in their
ordinary usage, taking into account the written description found
in the specification. In re Morris, 127 F.3d 1048, 1054, 44
USPQ2d 1023, 1027 (Fed. Cir. 1997); In re Zletz, 893 F.2d 319,
321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).
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