Appeal No. 2004-2028
Application No. 09/423,746
Supplemental Brief, page 11. This argument is unconvincing.
We initially note that Regler does not require nitrogen
compounds to be in its powder composition or the powder composition
of the type described in Fagiolini ‘835. We also note that the
claimed powder composition, like the powder composition suggested by
Fagiolini ‘835 and Regler, can be used to remove nitrogen oxide.
See the specification, page 4. In any event, we note that the
appellants, by virtue of using the transitional term “comprising” in
the claims on appeal, do not preclude the presence of nitrogen
compounds or nitrogen removing properties in their composition.
In re Baxter, 656 F.2d 679, 686-87, 210 USPQ 795, 802-03 (CCPA
1981)(“As long as one of the monomers in the reaction is propylene,
any other monomers may be present, because the term ‘comprise’
permits the inclusion of other steps, elements, or materials.”).
The appellants argue that the limitation of claim 13 is not
taught in the prior art references. This argument, however, ignores
the specific teachings at page 4 of Fagiolini ‘835. Fagiolini ‘835
clearly teaches a powder reactive composition having the claimed
particle size slope and distribution. Id.
13
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