Appeal No. 2006-0369 Παγε 8
Application No. 10/225,395
Appellants clearly envisioned the use of all conventional
cross-linking agents (including those that contain sulfur and
those that do not contain sulfur) suitable for the cross linking
of ethylene-propylene diene monomer (EPDM) and other elastomers
as set forth in the referred to paragraph 0023 of the
specification. One type of suitable cross-linking agent contains
sulfur (either sulfur or sulfur derivatives as listed in that
same paragraph of the specification) and, inferentially, another
type would not include sulfur. The examiner has not persuasively
articulated why appellants would be invoking a new concept by
claiming a cross-linking agent that does not include sulfur based
on that non-limiting disclosure of sulfur and sulfur derivatives
as merely one kind of cross-linking agents that could be used.2
In this regard, appellants are permitted to claim less
than they disclosed as long as they do not introduce a new
concept. Here, the examiner has not satisfactorily carried the
burden of explaining the new concept introduced by the claim
2
2 We note that the appealed claims include “comprising”
language and thus are not limited to the use or presence of only
the one cross linking agent set forth therein. For example, an
article including both a sulfur-containing cross-linking agent
and a non-sulfur containing cross-linking agent that also
includes the other features of claim 27 would be within the scope
of claim 27.
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