Appeal No. 2006-3310 Page 6
Application No. 10/282,424
non-flowability refers to the non-migratory property, and dimensional stability refers
to the ability to exist in a self-supporting mass.
We have construed the claimed limitation that the composition is “non-flowable at
temperatures greater than about 120ºF” to require that the composition is non-
flowable at a temperature above 120°F. As explained in our claim construction, we
interpret the claim in this manner because the specification describes specific
melting and softening points for the carrier, indicating that the composition becomes
flowable at a certain point above 120°F as determined by the carrier in combination
with the other components present in claim 1. Thus, we do not agree with the
Examiner’s interpretation that “greater than about 120°F” would “include all
temperatures greater than about 120°F, e.g., 130°F, 140°F, 150°F, 160°F, etc.”
Answer, page 6. Having rejected this claim construction, the requirement that the
composition is dimensionally stable up to 130°F (i.e., loses its ability to support its own
weight above 130°F), is consistent with claim 1 which requires that the composition to
be non-flowable at a temperature above 120°F. 130°F is a temperature above 120°F.
Thus, we reverse the § 112, second paragraph, rejection of claim 24.
Obviousness under § 103
Claims 1-6, 8-19, and 24 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over WO ‘528 in view of Hefling2 and WO ‘628.3
2 Hefling, U.S. Patent No. 5,498,351, March 12, 1996
3 Haas et al., WO 00/25628 (WO ‘628), May 11, 2000
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