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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