Appeal No. 2006-3223 Page 5
Application No. 10/663,352
presence of more than one layer. See e.g., description of three preferred embodiments
beginning at id., page 7, line 29; page 17, line 1; and page 18, line 10.
The claim expressly states that the layer is a mixture of three different
components. In examining the claims of an application, the PTO is permitted to adopt
“the broadest reasonable meaning of the words in their ordinary usage as they would be
understood by one of ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may be afforded by the written
description contained in the applicant's specification.” In re Morris, 127 F.3d 1048,
1054, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997). See also In re Crish, 393 F.3d 1253,
1256, 73 USPQ2d 1364, 1367 (Fed. Cir. 2004). As explained above, when read in light
of the specification, the person of ordinary skill in the art would understand that the
components in the recited “layer” were blended together, rather than being a mixture of
layers. This does not rule out the presence of an additional layer in the claim. Because
claim 45 uses “comprising” terminology, it is open to the presence of more than one
layer in the claimed color-changing matrix. However, as we have construed this claim,
the additional layers are not defined by the recited “mixture” of three components.
The Examiner points to the description on page 4 of a matrix that includes two
layers, and concludes that “the matrix is still one overall layer.” Answer, page 7. We
agree with Appellants that the cited passage does not refer to the matrix as being “one
overall layer.” Reply Brief, page 1. Rather, it expressly states that “the matrix includes
two layers, joined together.” Specification, page 4, lines 27-28.
The Examiner relies on the dictionary definition of “mixture” to support his claim
construction. Answer, page 6. This dictionary defines “mixture” as referring to, inter
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