Appeal 2007-2062
Application 10/360,263
(6) Schneider teaches materials useful for the nanoparticles include
silica, alumina, graphite, and metals (¶ [0037]);
(7) Schneider exemplifies nanoparticle compositions where the
particles include fused quartz/borosilicate glass microspheres and
alpha-alumina in sizes from 50 to 60 nm, with some nanoparticles
dispersed in an acid-functional siloxane (Table 1, Samples 5 and 6,
footnote 13; Samples 12 and 13, Table 9, Example 4, ¶ [0073];
Example 7, ¶ [0078] and [0079], footnote 19; and Table 16,
footnote 28, ¶ [0080]).
Implicit in our review of the Examiner’s anticipation analysis is that
the claim must first have been correctly construed to define the scope and
meaning of each contested limitation. See Gechter v. Davidson, 116 F.3d
1454, 1457, 43 USPQ2d 1030, 1032 (Fed. Cir. 1997). During examination
proceedings, claims are given their broadest reasonable interpretation
consistent with the specification as it would be understood by one of
ordinary skill in the art. See In re Graves, 69 F.3d 1147, 1152, 36 USPQ2d
1697, 1701 (Fed. Cir. 1995). “We agree, however, with the Board that the
disclosure in the McGill patent of a carbon monoxide concentration of
‘about 1-5%’ does allow for concentrations slightly above 5%.” In re
Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990).
The use of the term “about” shows that the applicants did not intend to limit
the claimed ranges to their exact end-points. See Jeneric/Pentron, Inc. v.
Dillon Co., 205 F.3d 1377, 1381, 54 USPQ2d 1086, 1089 (Fed. Cir. 2000).
Disclosure in the prior art of any value within the claimed range is an
anticipation of the claimed range. See In re Wertheim, 541 F.2d 257, 267,
191 USPQ 90, 100 (CCPA 1976). The earlier disclosure of a range that
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