Appeal 95-4477
Application 08/006,350
USPQ 90, 98 (CCPA 1976). Thus, "on the facts" (emphasis
added) the Wertheim court found that a range of "between 35%
to 60%" was described in a specification explicitly describing
a range of 25% to 60%. However, the CCPA noted that it was
not creating a per se rule: "[w]e wish to make it clear that
we are not creating a rule applicable to all description
requirement cases involving ranges." 541 F.2d at 264, 191
USPQ at 98. Rather, the CCPA noted (id.):
Where it is clear, for instance, that the broad
described range pertains to a different invention
than the narrower (and subsumed) claimed range, then
the broader range does not describe the narrower
range.
In support of its observation, the CCPA referred to In re
Baird, 348 F.2d 974, 146 USPQ 579 (CCPA 1965). In Baird, the
CCPA found that a claimed temperature range of "from about
40EF to at least as low as about 60EF" was not described by a
range of "between 0E and 80EC. (32EF and 176EF.)" and an
example describing a temperature of 7EC (44.6EF). 348 F.2d at
982, 146 USPQ at 585. Baird had indicated that the lowest
practical temperature was 40EF. Thus, in Baird, the new range
- 13 -
Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: November 3, 2007