Appeal No. 2006-1144
Application No. 09/975,806
The sole argument advanced by appellant is that Kreth “is
unlike the present invention claimed which requires only the
presence of titanium dioxide and barium sulfate in an amount
effective to stabilize and avoid agglomeration of the TiO2” (page
7 of brief, second paragraph). However, we agree with the
examiner that there are at least two reasons why this argument
is not persuasive. First, it is fundamental that the
“comprising” language does not preclude the presence of other
components in the claimed pigment composition, including the
calcium sulfate disclosed by Kreth as a possible component.
Secondly, Kreth’s disclosure of a pigment composition comprising
a mixture of TiO2 and barium sulfate and/or calcium sulfate, or
mixtures thereof, properly qualifies as a description of a
pigment mixture of TiO2 and barium sulfate for purposes of § 102.
See In re Schaumann, 572 F.2d 312, 197 USPQ 5 (CCPA 1978).
Certainly, the selection from three possible choices of
components for the pigment composition is a narrow one that is
tantamount to a description of each of the three possibilities.
Furthermore, it is significant that Kreth exemplifies a mixture
of TiO2 and barium sulfate.
Appellant does not present separate substantive arguments
against the examiner’s separate § 103 rejections but, rather,
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