Appeal No. 2004-2233
Application No. 10/100,331
unavailing. As noted above, Michels teaches a distillation step
to remove the organic solvent. (Column 5, lines 24-25.) Also,
nothing in the written description of the present specification
indicates that residual organic solvents, if any are indeed
present in the prior art aqueous dispersion, are excluded by
appealed claim 1. Quite contrarily, the specification states
that various “other additives” and “other components” may be
present in the claimed latex. (Specification, page 6, line 30 to
page 7, line 5.)
To the extent that appealed claim 1 recites “consisting
essentially of,” the appellant has not adequately established
that the presence of residual organic solvents would materially
affect the basic and novel characteristics of the invention
recited in appealed claim 1. PPG Industries Inc. v. Guardian
Industries Corp., 156 F.3d 1351, 1354, 48 USPQ2d 1351, 1353-54
(Fed. Cir. 1998); In re Herz, 537 F.2d 549, 551-52, 190 USPQ 461,
463 (CCPA 1976).
The appellant further contends that “Michels proposes
fluorinated dispersions which are clearly different from the
cationic lattices of the invention.” (Appeal brief at 6.) This
position is also without any merit. The present specification
describes the use of fluorine-containing monomers.
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