Appeal 2007-0255
Application 10/331,878
associate with a component on the "consisting of" list are not excluded.
Conoco Inc. v. Energy & Environmental International LC, 460 F.3d 1349,
1360, 79 USPQ2d 1801, 1809 (Fed. Cir. 2006). The reason for this is that
impurities normally associated with the component of a claimed invention
are implicitly adopted by the ordinary meaning of the components
themselves. Id., at 1361, 79 USPQ2d at 1809. Furthermore, "the intentional
addition of a component does not change its status as an 'impurity ordinarily
associated therewith.'" Id., at 1360, 79 USPQ2d at 1809 (citing Ex parte
Davis, 80 USPQ 448, 450 (Bd. App. 1948)).
The list of items following "consisting of" in claim 24 does not
include a purified carbon dioxide gas or the like condensable gas. While
Appellant recognizes that "the permeation of traces of atmospheric gases
inside the panel is practically unavoidable" and seeks to sorb these gases by
providing getter materials (Specification [0006] and [0032]), Appellant does
not disclose charging the panel with purified carbon dioxide or the like
condensable gas, as disclosed by Perkins. In fact, a person of ordinary skill
in the art would infer from the above disclosure that charging such purified
carbon dioxide or the like condensable gas would not be desirable in the type
of panel described by Appellant and would not ordinarily associate such gas
charged into the panel of Perkins with Appellant's panel, or the recited
components thereof, or with the traces of atmospheric gases discussed by
Appellant. We thus conclude that the purified carbon dioxide or the like
condensable gas charged into the panel of Perkins is excluded by the
"consisting of" language in claim 24 and that, consequently, claim 24 is not
anticipated by Perkins. The rejection of claim 24, and claims 26 and 29-32
depending from claim 24, as anticipated by Perkins is reversed.
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