Appeal 2006-3235
Reexamination Control No. 90/006,696
1 After setting forth the “means . . . for creating air channels”
2 limitation, that limitation is further defined by the next clause of
3 the claim, which reads: “said means for creating air channels
4 comprising positioning means which positions at least one
5 elongated, perforated pipe . . . . ′910 patent, col. 4, ll. 13-15.
6 Although “comprising” language is not limiting and may
7 include features not recited in the claim, such language cannot
8 be read to require other structure.
9 392 F.3d at 1329, 73 USPQ2d at 1194 (emphasis added). Also, Georgia-
10 Pacific gave an open-ended construction to the phrase “said mat comprising
11 randomly distributed glass fibers bonded by an adhesive material” in the
12 body of Claim 1 of Patent 4,810,569. As support, the court quoted MPEP
13 § 2111.03 (6th ed. 1997) (“The transitional term ‘comprising’ . . . is
14 inclusive or open-ended and does not exclude additional , unrecited elements
15 or method steps”) and also cited Moleculon and In re Baxter, 656 F.2d 679,
16 210 USPQ 795 (CCPA 1981). Georgia-Pacific, 195 F.3d at 1327-28 & n.4,
17 52 USPQ2d at 1595 & n.4.
18 Appellant is therefore incorrect to cite Moleculon as support for the
19 general proposition that a nontransitional occurrence of “comprises” or
20 “comprising” should be treated as a closed term. Furthermore, it is clear that
21 Moleculon’s closed construction of the nontransitional term “comprising”
22 was due to the structure of the involved claim, which read:
23 3. A method for restoring a preselected pattern
24 from sets of pieces which pieces have constantly exposed
25 and constantly nonexposed surfaces, the exposed surfaces
26 adapted to be combined to form the preselected pattern,
27 which sets when in random engagement fail to display
28 said preselected pattern which comprises:
29 a. engaging eight cube pieces as a composite cube;
30 b. rotating a first set of cube pieces comprising
31 four cubes about a first axis;
36
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