Appeal No. 2006-1738 Page 3
Application No. 10/059,564
The preamble of the claim indicates that the claimed composition is “for termite
monitoring and control.” The claim body does not refer to the “termite monitoring and
control,” nor does it provide any definition or structure to it that would indicate how it
would limit the claimed composition. While it is true that a preamble of the claim can
“breathe life and meaning into a claim,” it appears here that the claim language is
merely an intended use of the claimed composition, without defining a tangible
limitation, such as a structural feature. For this reason, we do not consider it a
patentable limitation. See, In re Schreiber, 28 F.3d 1473, 1477, 44 USPQ2d 1429,
1431 (Fed.Cir.1997).
The claim body indicates that the compacted cellulose is to be used “as a base
bait.” Once again, this is an intended use. To determine whether this adds structure,
we need to refer to the specification. Bell Comm. Res., v. Vitalink Com., 55 F.3d 615,
620, USPQ2d 1816, 1820 (Fed.Cir.1995). Throughout the specification, bait is
described essentially as an attractant that is ingested by termites. See, e.g.,
Specification, page 2, lines 19-27; page 5, line 3. Bait consumption is monitored to
determine the presence of termites. However, there does not appear to be any definite
structure required to be considered a bait. For example, on page 4, lines 27-29, it is
described as being in the form of “tablets, briquets, pellets, spikes, granules, or
extruded forms which may be made by tablet presses, roller compaction or other means
known to those skilled in the art.”
The preamble also indicates that the composition, which contains either purified
cellulose or micro-crystalline cellulose, is “in compacted form.” The latter is linked to the
body of the claim, where the composition is described as being “compacted to a density
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