1 According to EPA, "[t]he machine dishwashing process comprises
2 washing articles in a main wash cycle and rinsing them in one or more rinse
3 cycles." (Emphasis added). Page 1, lines 10-11. EPA goes on to say "[a]
4 rinse aid composition is designed for use in the final rinse step of the
5 machine dishwashing operation, separately from the detergent composition
6 used in the main wash cycle." Page 1, lines 11-12. Based on the last
7 sentence, in this appeal applicants seemingly attempt to limit the description
8 of the use of the compositions of EPA to only a final rinse. Use of the
9 composition in the final rinse is more likely a preferred embodiment of EPA.
10 Inconsistent with applicants' current argument is their "pre-litigation" EPA
11 statement that "[t]he invention is also directed to a method of using the
12 polymers in machine dishwashing …" (page 2, lines 14-15) and claim 10.
13 EPA claim 10 describes "[a] method of rinsing tableware in a machine
14 dishwasher with a rinse aid composition useful for inhibiting scale
15 comprising the steps of … introducing the rinse aid into a rinse cycle of a
16 machine dishwasher to inhibit scale formation." (Emphasis added).
17 Applicants now attempt to place a narrow construction on what they
18 describe in EPA. The credible description of the prior art "one or more rinse
19 cycles" (EPA, page 1, lines 10-11) and EPA claim 10 provide a more than
20 adequate basis for finding that a person having ordinary skill in this art,
21 considering EPA as a whole, would understand that EPA describes the use
22 of the composition in any rinse cycle. We find it unlikely that a mechanical
23 dishwasher would ordinarily include more than a small number of rinse
24 cycles. A disclosure that a composition can be used in a rinse cycle is a
25 description to a person having ordinary skill of using the composition in the
26 known penultimate and final rinse cycles. Cf. In re Petering, 301 F.2d 676,
6
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Last modified: November 3, 2007