1 wherein said polymer is released into a cold, penultimate rinse
2 cycle preceding a heated, final rinse cycle of a dishwashing
3 sequence;
4
5 wherein said vehicle of (B) is defined as (1) the sum of all
6 components forming said composition except for said
7 antiscaling polymer; or (2) an encapsulating material or other
8 slow release protective chemical or device.
9
10 The claim is peculiar in that it is directed to a "composition" and yet it
11 requires that a specific method step be performed, viz., "wherein said
12 polymer is released into a cold, penultimate rinse cycle preceding a heated,
13 final rinse cycle of a dishwashing sequence." The method step in no way
14 defines the "composition." We have treated the method step as defining a
15 "property" of the composition, or as the Examiner indicated (Examiner's
16 Answer, page 6), as a statement of intended use, i.e., that the composition
17 must be capable of being used in the manner otherwise set out in the method
18 step. In the event of further prosecution, attention is directed to IPXL
19 Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1384, 77 USPQ2d
20 1140, 1145 (Fed. Cir. 2005) (single claim covering both an apparatus and a
21 method of use of that apparatus held to be indefinite under the second
22 paragraph of 35 U.S.C. § 112); Ex parte Lyell, 17 USPQ2d 1548 (Bd. Pat.
23 App. & Int. 1990) (same). Claims 1-11 are indefinite, but we have
24 proceeded with the appeal giving those claims the construction we believe
25 applicants intended. Cf. Stelos Co., Inc. v. Hosiery Motormend Corp.,
26 295 U.S. 237, 243 (1935).
27
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