Appeal 2007-1382
Application 10/334,871
field as “roofing underlayments” (Specification 1:7-8). Accordingly, we do
not need to consider the second prong of the test for analogous prior art
(relevance to the problem facing Appellants), and determine that Jones is
analogous prior art.
Applying the preceding legal principles to construe the contested
limitation of “vapor retardant,” we determine that Appellants have not
defined this term or set forth any guidelines or interpretation of this term in
the Specification (see the Answer 8). We agree with the Examiner that the
only description of water vapor transmission rate occurs on page 11 of the
Specification where Appellants state that “[p]referably, the laminate will
also have the following … water vapor transmission value of no greater than
0.50 grams per square meter when tested according to ASTM E96” (see also
Answer 8). We determine that the Specification has no express disclaimer
of a higher water vapor transmission value and find no reason to limit the
claimed term “vapor retardant” to the preferred value in the Specification.
Accordingly, giving the disputed term its broadest reasonable meaning as it
would ordinarily be used, we construe this term to include materials which
impede the progress of water vapor through the material, and can include
materials with water vapor transmission values greater than 0.50 grams per
square meter when tested according to ASTM E96 (Answer 8).
We are not convinced of a different meaning from Appellants’
arguments in the Reply Brief. First, we note that the ASHRAE
Fundamentals Handbook 2001, 23.17 (Baird, ed., American Society of
Heating, Refrigerating and Air-Conditioning Engineers, Inc. 2001), relied on
by Appellants (Reply Br. 2), has not been made of record. Second, even if
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