Appeal 2007-2521
Reexamination 90/007,130
1 Patentees also claim paints including the additives. The paints are
2 require to have “improved intercoat adhesion.” Representative Claim 4
3 follows:
4 4. A paint or coating composition with improved
5 intercoat adhesion containing the rheological additive of
6 claim 1.
7 CLAIM CONSTRUCTION
8 “Consisting of”
9 Claim 1 and, by incorporation, Claim 4 use the phrase “consisting of”
10 twice. First the additive consists of “the reaction product” of three named
11 components. Second, the process of making the additive consists of mixing
12 the three additives and heating.
13 “Consisting of” is a term of art in patent claim drafting having a well
14 established meaning:
15 The phrase “consisting of” is a term of art in patent law
16 signifying restriction and exclusion, while, in contrast,
17 the term “comprising” indicates an open-ended
18 construction. In simple terms, a drafter uses the phrase
19 “consisting of” to mean “I claim what follows and
20 nothing else.”
21 Vehicular Tech. Corp. v. Titan Wheel Int'l Inc., 212 F.3d 1377, 1382-1383,
22 54 USPQ2d 1841, 1845 (Fed. Cir. 2000).
23 Applying this standard to the claims before us, the additive is limited
24 to the reaction product of only the components (a), (b) and (c) produced by
25 the two step process of mixing the three components and heating. All other
26 materials and steps are excluded from the scope of the claims. Vehicular
27 Tech., 212 F.3d 1377at 1383, 54 USPQ2d at 1845.
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