Appeal No. 2007-0491
Application No. 10/495,074
“By using the term ‘consisting essentially of,’ the drafter signals 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,
claim 17 is open to ingredients other than the specifically recited monomers
that do not materially affect the basic and novel properties of the invention.
“It is axiomatic that claims are given their broadest reasonable
construction consistent with the specification. . . . Therefore, in construing
the phrase ‘consisting essentially of’ in appellants’ claims, it is necessary
and proper to determine whether their specification reasonably supports a
construction that would include additives such as [those in the prior art].”
In re Herz, 537 F.2d 549, 551, 190 USPQ 461, 463 (CCPA 1976).
The specification states that an “object of the present invention is to
provide a curable resin composition which can provide an optical material (a
plastic lens) having good balanced optical properties (such as a refractive
index and an Abbe number), and mechanical and thermal properties (such as
thermal resistance and impact resistance) and improved colorless
transparency and resin brittleness.” (Specification 2.) Thus, we find that the
“consisting essentially of” language of claim 17 excludes ingredients that
materially affect the ability of the composition to provide an optical material
having good balanced optical, mechanical, and thermal properties.
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