Appeal 2006-2589
Application 10/618,499
However, the Examiner properly asserted that it would have been
obvious to a person of ordinary skill in the art to form the articles of
Diehr from a lignocellulosic material having a moisture content of
less than 2.0% by weight. Mente describes lignocellulosic materials
formed from materials having a moisture content of 2-15% (Answer
4). Mente discloses a preference for the moisture content to remain
in a disclosed range in order to maintain binding efficiency (col. 4,
ll. 33-41). Appellants acknowledge that ordinary stock
lignocellulosic substrates have a moisture content of about 3-8% by
weight (Specification [0015]). As such, a person of ordinary skill in
the art would have reasonably expected that lignocellulosic materials
having low moisture content such as slightly less than 2% by weight
would have been suitable for forming the articles of Diehr. Titanium
Metals Corp. of Am. v. Banner, 778 F.2d 775, 783, 227 USPQ 773,
779 (Fed. Cir. 1985) (holding that a prima facie case of obviousness
exists even when the claimed range and the prior art range do not
overlap but are close enough such that one skilled in the art would
have expected them to have the same properties). Consequently, we
conclude that a prima facie case of obviousness has been established
which has not been adequately rebutted by Appellants.
We now turn to the subject matter of claim 1-15.
First, we note that claim 1 is written in product-by-process
format. Therefore, the Examiner can satisfy his or her burden under
§ 103 if the prior art reasonably appears to disclose a product that is
identical with or only slightly different from the product claimed.
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