Appeal No. 2002-2243 Page 4
Application No. 09/768,321
salt solution alone, which determines the efficacy of the borate salt in eradicating or
repelling termites from the material. In other words, as explained by Palmere (column
15, lines 42-44), a very dilute solution of borate salt can be applied to a material in an
amount effective to prevent or eradicate infestation in the material by applying larger
quantities of the solution, such as by multiple applications.
While it is true that the claims in a patent application are to be given their
broadest reasonable interpretation consistent with the specification during prosecution
of a patent application (see, for example, In re Zletz, 893 F.2d 319, 321, 13 USPQ2d
1320, 1322 (Fed. Cir. 1989)), it is also well settled that terms in a claim should be
construed as those skilled in the art would construe them (see Specialty Composites v.
Cabot Corp., 845 F.2d 981, 986, 6 USPQ2d 1601, 1604 (Fed. Cir. 1988) and In re
Johnson, 558 F.2d 1008, 1016, 194 USPQ 187, 194 (CCPA 1977).
In light of the above discussion, we conclude that one of ordinary skill in the field
of appellant’s invention would have understood the step of “spraying at least one of tree
bark and wood chips with an aqueous solution of a borate salt in a concentration
sufficient to produce a mulch ineffective in protecting the mulch from infestation by
termites and effective in killing termites in a colony remote from the mulch” recited in
claim 21 to require spraying the solution in a concentration and a quantity or amount
which is ineffective in protecting the mulch from infestation by termites and effective in
killing termites in a colony remote from the mulch. In other words, the spraying step
must produce a mulch which contains a sufficient amount of borate salt to kill termites
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