Appeal 2006-1705
Application 10/744,481
in the specification. In re Wright, 999 F.2d 1557, 1561, 27 USPQ2d 1510,
1513 (Fed. Cir. 1993).
According to the Examiner, the appealed claims would be enabled
only if amended to include the ratio limitation discussed above. This
limitation involves the amount of chlorine dioxide and chlorite anion
products generated by the here claimed massive body. It is the essence of
this limitation that chlorine dioxide constitutes at least 25% of these
products. The disclosure of this limitation appears in the last paragraph on
specification page 4.
Specifically, this page 4 disclosure teaches that "[t]he massive body is
such that when it is added to liquid water, it will produce a solution of
chlorine dioxide and free halogen, … the ratio of the concentration of
chlorine dioxide to the sum of the concentrations of chlorine dioxide and
chlorite anion in the solution is at least 0.25:1 by weight." Id. Importantly,
neither this disclosure of page 4 nor the remaining disclosure of the subject
specification teaches that the massive body disclosed and claimed by
Appellants would not perform the desired biocidal function if it produces a
solution containing less than 25% by weight chlorine dioxide. To the
contrary, the first paragraph on specification page 3 teaches that it would be
merely "desirable" to produce a chlorine dioxide solution "that did not also
contain excessive amounts of chlorine." Similarly, the disclosure in the first
full paragraph on specification page 8 teaches that, in certain situations, "the
presence of a relatively high concentration of chlorine or other free halogen
in solution may be acceptable."
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