Appeal No. 2006-2393
Application 10/439,947
any amount of each of the prepaints of the set into a container to form the at least one paint line,
and (3) mixing any amount of thickener with at least one of the prepaints. We determine from
the context of the claim and the written description in the specification that the prepaints are part
of a set and it is at least some amount of each of the prepaints in the set which is dispensed into a
container to form the at least two paints of the paint line. The use of the term “set” in the context
of the claim and the written description in the specification in this manner is indeed, the
customary and ordinary meaning that one of ordinary skill in the art would associate with this
term.4
Each of the three required prepaints is specified in the same language of which the
following is representative: “at least one prepaint z, comprising at least one polymer binder.”
We interpret this language to mean that “prepaint z” comprising at least any amount of any
polymer which can be characterized as a binder to any extent. Thus the claim is not drawn to a
“binder prepaint,” which term is defined in the specification (page 7, ll. 2-3) as appellant argues
(brief, page 5; see also “opacifying prepaint,” page 8). In any event, the definition of “binder
prepaint” in the specification requires only “that the prepaint contains at least 50 percent by
weight . . . of at least one polymer binder” (page 7, ll. 2-3) and does not preclude a polymer
binder that also functions as a thickener, or the presence of any other ingredients including
opacifying pigments and extender pigments. Further, claim 1 specifies that at least one of the
prepaints is a solid. However, contrary to appellant’s arguments, there is no limitation in claim 1
which specifies that a solid prepaint cannot be combined with a liquid in a container or
application device and the resulting liquid or slurry combined with other prepaints, as liquids or
slurries, in the same or additional containers or application devices.
We note here that the open-ended term “comprising” used in transition and in the body of
the claim, opens the claim to include any method containing any manner of additional steps and
ingredients. See generally, Exxon Chem. Pats., Inc. v. Lubrizol Corp., 64 F.3d 1553, 1555,
35 USPQ2d 1801, 1802 (Fed. Cir. 1995) (“The claimed composition is defined as comprising -
October 31, 2005.
4 See generally, “Set2 . . . n. 1. A group of things of the same kind that belong together and are
so used.” The American Heritage Dictionary Of The English Language 1593 (4th ed., Boston,
Houghton Mifflin Company. 2000).
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