Ex Parte Fung et al - Page 6

               Appeal 2007-2028                                                                             
               Application 11/058,147                                                                       

                      We do not find Appellants’ arguments persuasive.  The rejected                        
               claims do not recite a particulate animal litter composition.  Rather, claim 1               
               recites an animal litter “comprising . . . a substantially particulate silica gel            
               material with a particle size distribution between 0.15-2 mm” (emphasis                      
               added).  For the reasons discussed above, one of ordinary skill need only                    
               have followed the reference’s explicit teachings to arrive at a composition                  
               encompassed by claim 1.                                                                      
                      We note that claim 1’s preamble states that the composition is “[a]n                  
               animal litter.”  However, it is well settled that an “intended use or purpose                
               usually will not limit the scope of the claim because such statements usually                
               do no more than define a context in which the invention operates.”                           
               Boehringer Ingelheim Vetmedica v. Schering-Plough Corp., 320 F.3d 1339,                      
               1345, 65 USPQ2d 1961, 1965 (Fed. Cir. 2003).  Thus, a prior art product                      
               capable of performing a claimed intended use will meet the intended use                      
               limitation, even if the prior art does not disclose that the product was                     
               actually put to the intended use.  See In re Schreiber, 128 F.3d 1473, 1477,                 
               44 USPQ2d 1429, 1431 (Fed. Cir. 1997).                                                       
                      In the instant case, Benjamin discloses that “[i]f the pads are to be                 
               used as the sol[i]d absorbent material in the litter box, an appropriate amount              
               of bacteriostat is from about 25 ppm to about 500 ppm by weight of the                       
               absorbent pad” (Benjamin col. 4, ll. 44-47).  This statement makes it clear                  
               that Benjamin’s flexible absorbent pad can be used in the intended manner                    
               as a material for absorbing animal waste in an animal litter box.  Moreover,                 
               by disclosing that porous absorbent material such as cloth can be used as                    
               litter (Specification 1:30-32), Appellants’ own Specification demonstrates                   


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