Appeal No. 2002-2063
Application No. 09/635,093
essentially of FAME. (Id., lines 14-15). Again, no showing has
been made that the phenolic component of Furness is excluded by
the language consisting essentially of. We remain unpersuaded by
this argument as well.
Claim 23 - solvent (a)(ii) and (b)(ii) are more FAME than
high boiling aromatic hydrocarbons. (Id., lines 16-17). As noted
above, Furness discloses other solvents, and therefore need not
contain high boiling aromatic hydrocarbons. Accordingly, a
minimal amount of FAME, such as the suggested 5-8%, will meet the
claim limitation.
The appellants urge that the examiner has failed to consider
the “consisting essentially of” limitations. However, we remind
the appellants that it is their burden to establish what is
excluded from this language by evidence that the excluded
components materially affect the novel characteristics of the
claimed invention, and no effort has been made by the appellants
in this regard.
The appellants make numerous additional arguments attacking
the examiner’s positions from pages 19, line 23 - page 28, last
line. These arguments illustrate the principal problem with the
appellants’ case; that no amounts of high-boiling aromatic
hydrocarbon solvent, or other than trace amounts of FAME, are
literally required by the claims. Appellants urge that myriad
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