Appeal 2006-2969
Application 10/394,075
clearly seen attached directly to the fibers in clusters only one or two
particles thick” also do not elucidate any attachment mechanism (Br.
Evidence Appendix). Thus, the written description in the Specification
establishes no more than that by any mechanism, the hydrophobic particles
adhere directly to and are located directly on a surface of a fiber or a yarn,
including surfaces which have been coated or chemically modified. Indeed,
we find no basis in the language of claims
1 and 25 or in the Specification to read certain of the Specification examples
to the extent evinced in the micrographs into the claims as a limitation. See,
e.g., Zletz, 893 F.2d at 321-22, 13 USPQ2d at 1322.
Accordingly, on this record, we cannot agree with Appellants that the
phrase “surface consisting essentially of a surface of a fiber or yarn”
excludes surfaces of fibers and yarns which have been coated or chemically
modified, including coatings and chemical modification which facilitate
adherence of the hydrophobic particles to such fibers in the manner
described to one skilled in this art by the applied references. The claim term
“consisting essentially of” is used in claim construction to indicate, for
example, that “the invention necessarily includes the listed ingredients and is
open to unlisted ingredients that do not materially affect the basic and novel
properties of the invention.” PPG Indus., Inc. v. Guardian Indus. Corp., 156
F.3d 1351, 1354, 48 USPQ2d 1351, 1353-54 (Fed. Cir. 1998). Thus, the
interpretation of this term in this instance requires a determination of the
surfaces of any fibers and any yarns that would materially affect the basic
and novel characteristics of the claimed textile materials and fabrics, because
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