Appeal 2007-2028
Application 11/058,147
of ordinary skill in the art.” In re Sneed, 710 F.2d 1544, 1548, 218 USPQ
385, 388 (Fed. Cir. 1983) (citation omitted). We agree with the Examiner
that, when given its broadest reasonable interpretation in light of the
specification, claim 1 encompasses the flexible absorbent pad suggested by
Benjamin.
Specifically, claim 1 recites a litter composition “comprising . . . a
substantially particulate silica gel material with a particle size distribution
between 0.15-2 mm.” As discussed above, Benjamin discloses that the
flexible absorbent pad comprises “a mixture of hydrophilic fibers and
discrete particles of a water-insoluble hydrogel . . . such as silica gels” (id.
at col. 5, ll. 11-30, emphasis added). We agree with the Examiner that, by
disclosing that the flexible structure may contain discrete particles of a
hydrogel such as silica gel, Benjamin meets the limitation in claim 1, that the
litter contains “substantially particulate silica gel material.”
Appellants argue that “one of ordinary skill would not find a
motivation to modify the absorbent pad taught in Benjamin to make the
particulate silica gel animal litter material claimed by Appellants” (Br. 12).
Rather, Appellants argue, Benjamin teaches away from modifying the
flexible absorbent pad to make a particulate litter composition because
Benjamin teaches that the pad may be used as a litter box liner when covered
with conventional litter (id. at 12-14). Appellants argue that modifying the
flexible pad to make a litter composition would defeat the pad’s disclosed
intended purpose (id. at 14-15), and therefore only through hindsight would
one of ordinary skill have been motivated to modify Benjamin’s absorbent
flexible pad (id. at 16-17).
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