Appeal 2006-3072
Application 10/419,763
additional materials and layers. See, e.g., Exxon Chem. Pats., Inc. v.
Lubrizol Corp., 64 F.3d 1553, 1555, 35 USPQ2d 1801, 1802 (Fed. Cir.
1995) (“The claimed composition is defined as comprising - meaning
containing at least - five specific ingredients.”); In re Baxter, 656 F.2d 679,
686-87, 210 USPQ 795, 802-03 (CCPA 1981) (“As long as one of the
monomers in the reaction is propylene, any other monomer may be present,
because the term ‘comprises’ permits the inclusion of other steps, elements,
or materials.”); In re Bertsch, 132 F.2d 1014, 1019, 56 USPQ 379, 384
(CCPA 1942) (“it is true that the word ‘comprising’ is usually in patent law
held to be synonymous with the word ‘including’”); cf. Ex parte Davis,
80 USPQ 448, 449 (Bd. App. 1948) (“the word ‘comprising’ alone being
synonymous with ‘including’”).
There is no requirement in claim 1 that the difference in anchoring
energies is due to the polymerized aligned mesogenic material (see Br. 7) as
there is in dependent claim 2, wherein the differences in anchoring energies
is specified to result from polymerization of the mesogenic materials at
different temperatures. Thus, claim 2 is framed in product-by-process
format. See, e.g., In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966
(Fed. Cir. 1985). There is also no requirement in these claims with respect
to the affect of the anchoring energies of the surfaces of the cell walls on the
alignment of the liquid crystal material.
We note here that independent claim 27 encompasses the same subject
matter in this respect as claim 1 while in independent claims 36 and 38, the
polymerized mesogenic material causes the difference in anchoring energies,
and claim 38 further specifies the polymerized mesogenic material has
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