Appeal Number: 2006-2894
Application Number: 10/375,188
as requiring that the barrier layer includes the odor-masking
and/or neutralizing agent. The claim, however, recites that the
structure can be a pouch, and the specification states that the
pouch can contain a powder placed therein because it is often
difficult to embed powders in a patch (page 11, lines 19-22).
Thus, the broadest reasonable interpretation of claim 1 in view
of the specification is that “at least one structure comprising
a first layer being a barrier layer and including an odor-
masking and/or neutralizing agent” means that the structure
comprises a barrier layer and includes an odor-masking and/or
neutralizing agent, not that the structure comprises a barrier
layer that includes an odor-masking and/or neutralizing agent
(although the claim is open to that structure).3
The appellants argue that Cappuzzo does not disclose a
barrier layer that includes an odor-masking and/or neutralizing
agent but, rather, simply discloses granules 21 and 22 between
two layers (brief, page 7). As discussed above, the broadest
reasonable interpretation of the appellants’ claim 1 does not
require that the barrier layer contains the odor-masking and/or
neutralizing agent. Moreover, Lin, not Cappuzzo, was relied
3 During patent prosecution, claims are to be given their broadest reasonable
interpretation consistent with the specification, as the claim language would
have been read by one of ordinary skill in the art in view of the
specification. See In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322
(Fed. Cir. 1989); In re Sneed, 710 F.2d 1544, 1548, 218 USPQ 385, 388 (Fed.
Cir. 1983).
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