Appeal 2007-2906
Application 10/295,315
134a and 8.56 parts by weight of HFC-245fa,25 which translates into weight
percentages of 59.98 and 40.02, respectively.26 Intriguingly, the blowing
agent of Foam 4 is well outside the scope of claim 6 and almost exactly at
the limits of Takeyasu's more preferred range, yet Schilling's graph shows
Foam 4 as having a better than predicted k-factor. Thus, although the
examiner was wrong about Schilling's fourth example, the error is harmless
because the data is more consistent with the examiner's position than with
Bayer's.
The limited data that Bayer has provided shows better k-factors than
Dr. Schilling would have predicted for Takeyasu's more preferred
compositions, whether those compositions are within the scope of claim 6 or
not. Thus, on this record, improved k-factors cannot be said to distinguish
the composition of claim 6 from Takeyasu's more preferred compositions.
ANALYSIS
The subject matter of claim 6 would have been obvious
When the claimed invention falls within a range disclosed in the prior
art, there is a presumption of obviousness. The presumption may be
rebutted on a showing that (1) the prior art taught away from the claimed
invention or (2) there are new and unexpected results relative to the prior
art.27 Optimization within the suggested range is obvious unless the results
are unexpectedly good. Moreover, the showing of unexpectedly good
25 Schilling 4 (Table 1).
26 12.83/(12.83 + 8.56) and 8.56/(12.83 + 8.56), respectively.
27 Iron Grip Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d 1317, 1322,
73 USPQ2d 1225, 1228 (Fed. Cir. 2004).
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