Appeal No. 2006-3223 Page 4
Application No. 10/663,352
we must determine whether the “mixture” recited in claim 45 can also be comprised of
more than one layer.
As described in the specification, each single layer in a matrix is formed by
mixing its components together. To prepare a preferred single-layer matrix, Appellants
describe mixing a water-insoluble polymer (“ELVAX 360”), a water-soluble polymer
(“Polyox”), and an anti-microbial agent (“chlorhexidine”) in a blender (“The ELVAX 360,
Polyox, and chlorhexidine digluconate are mixed in a blender”). Specification, page 11,
line 33-page 12, line 2. The “mixture” of the three components is then extruded as a flat
matrix. Id., pages 12-13. The section in which this process description is found is titled
“Blending of Materials.” In sum, the application’s written description in this section
indicates that the “mixture” is a commingling of the polymers and anti-microbial agent
into one mass, consistent with the dictionary definition of “mix”2 which is evidence of its
ordinary usage.
When two-layer embodiments are described, it is the matrix itself which is
characterized as being composed of layers, not a component of it. See e.g.,
specification, page 4, lines 27-30; page 6, lines 1-2; page 17. The Examiner’s
construction of the claim puts the layers into the mixture, rather than into the matrix.
The specification, as indicated above, expressly refers to “mixture” in its description of
the process for blending the components to produce a single layer. When more than
one layer is included, the specification refers to this layer as being present in the matrix.
Thus, the specification does not use the term “mixture” when it intends to refer to the
2 Mix: “1 a (1): to combine or blend into one mass (2) to combine with one another b: to bring into close
association … 2: to form by mixing components . . . syn mix. MINGLE, COMMINGLE, BLEND, MERGE
…” Webster’s New Collegiate Dictionary 737 (1976).
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