Appeal 2007-2906
Application 10/295,315
results must be commensurate with the range now claimed.28 Unexpected
results must be based on comparison with the closest prior art and must
represent a difference in kind rather than a difference of degree.29
There is no teaching away. Takeyasu's preferred embodiment
describes the same components in ranges encompassing those now claimed.
Takeyasu's more preferred embodiment describes encompassing ranges that
are even closer in scope to those claimed. We find that Takeyasu would
have directed those in the art toward the ranges now claimed.30
The results Bayer has provided regarding k-factors are not
unexpected. The few data points provided are uniformly good for
compositions within the scope of Takeyasu's more preferred ranges, whether
or not they are also within the scope of claim 6. They do not differ in
degree, much less in kind, from those obtained using the prior art. There is
no evidence of sharp break-points in the data when moving from Takeyasu's
broader more preferred ranges into the narrower ranges of claim 6. Thus,
one could not even say that the claimed ranges have been optimized
compared to the prior art. Expected results support a conclusion of
obviousness rather than the converse.31
28 In re Peterson, 315 F.3d 1325, 1330, 65 USPQ2d 1379, 1383 (Fed. Cir.
2003).
29 Harris, 409 F.3d at 1344, 74 USPQ2d at 1955.
30 Cf. Harris, 409 F.3d at 1343, 74 USPQ2d at 1954 (differences in
overlapping prior art ranges and claimed ranges do not constitute a teaching
away).
31 KSR Int'l, 127 S. Ct. at 1740, 82 USPQ2d at 1395-96.
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