Appeal No. 2005-0798
Application No. 10/460,000
is clear that Swei cannot have particles with a distribution
between about 0.1 and 40 microns as recited in claim 18.
On page 3 of the reply brief, appellants argue that the
examiner’s conclusion is wrong because the particle sizes of the
silica in the present invention, as recited in claim 18, are
“distributed” over a range of about 0.1 to about 40 microns.
Appellants state that, in other words, the particles sizes of
the silica are of non-uniform size and therefore each particle
cannot have a “size of about 10 microns” as asserted by the
examiner in the first paragraph on page 7 of Answer.
We first note that during patent examination, in
determining the patentability of claims, the PTO gives claim
language its “broadest reasonable interpretation” consistent
with the specification and claims. In re Morris, 127 F.3d 1048,
1054, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997)(citations omitted).
We find that appellants’ specification discloses that the
silica particles “have sizes of from about 0.1 microns to about
40 microns”. See page 11, lines 27-30 of the specification, and
also see original claim 14. We cannot find in the specification
any detail of how the sizes are distributed, if at all, over the
range of from about 0.1 microns to about 40 microns. The
specification does not provide details of the particle size
diversity. Hence, we interpret the subject mater of claim 18,
in light of the specification, as comprising a silica filler
material comprising particles having a size of from about 0.1
micron to about 40 microns. We reiterate that the specification
does not indicate that the silica filler material is comprised
of substantially spherical or spheroidal particles, having
particles that are distributed over the entire range of about
0.1 to about 40 microns.
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