Appeal No. 2006-3223 Page 3
Application No. 10/663,352
construction is improper, and that the claimed mixture is drawn to a single layer
containing all three components. Brief, page 8.
The claim requires that the matrix comprises “a layer including a mixture of” three
components: water-insoluble polymer, water-soluble polymer, and a water-leachable
colorant. The Examiner argues that the “mixture” in the “layer” could be further
structured as a “plurality of sublayers.” Answer, page 5. To support this construction,
he cites a dictionary definition of “mixture.” Id., page 6. He also refers to the
application’s description of a preferred two-layered matrix, which he argues indicates
that “the matrix may have individual sublayers . . . but the matrix is still one overall
layer.” Id., page 7. As evidence that he correctly construed the claim, the Examiner
introduces Iijima,1 which he characterizes as describing “an individual layer” which
comprises a plurality of sublayers. Id., page 5.
The claims are directed to a “color changing matrix.” In preferred embodiments,
the matrix is a “flat template” attached to a toothbrush at the base of the bristles.
Specification, page 4, lines 11-13. Three preferred templates (matrices) are described
in the application: 1) “Single-layer template including chlorhexidine” (page 7, line 29); 2)
“Two-layer template including chlorhexidine” (page 17, line 1); and 3) “Template
including a colorant” (page 18, line 10). The template containing the colorant is
described to preferably contain two layers, each with a different colorant. Id., page 18,
lines 11-12. From this written description, it is clear that the matrix can contain more
than one layer. However, to resolve the dispute between Appellants and the Examiner,
1 Iijima et al. (Iijima), U.S. Pat. No. 4,701,404, issued Oct. 20, 1987
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