Appeal No. 2005-1247
Application No. 09/963,423 Page 8
evident by the claim term “diameters.” In other words, even
though the dispersions of the applied references include multiple
solid particles, those dispersions are not a solid comprising a
collection of solids in pulverulent (powder or dust-like) form1
that was formed in a water-free environment, as required by the
appealed claims. Rather, the aqueous dispersions of the applied
references are in the nature of an aqueous colloid-type or
aqueous fluid-type stable suspension of solids.2
We agree with the examiner that the term “about” as used in
the appealed claims allows for some variance or imprecision in
the particle size range endpoints that are claimed thereby
permitting some tolerance, and therefore encompassing values on
1 See the definition of “pulverulent” at page 946 of Merriam
Webster’s Collegiate Dictionary, Tenth Edition (1996). A copy of
that dictionary page accompanies this decision. Furthermore and
perhaps more importantly, we note that appellants alternately
refer to the solid adduct as pulverulent or a powder in the
specification. See, e.g., page 2 lines 13 and 17 of appellants’
specification. Thus, our construction of this claim term is
consistent with appellants use of the term in the specification.
2
2At page 2, paragraph 1 of the examiner’s final rejection,
the examiner may have taken a position that appears to be
inconsistent with at least part of the position taken in the
answer holding that a dispersion anticipates the solid product of
claim 2. In particular, the examiner asserts in that final
rejection paragraph that claims drawn to a dispersion represent a
separate and distinct invention from that of the solid product of
claim 2 in holding claims 22-24 withdrawn from consideration.
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