Appeal No. 1996-3770 Page 7
Application No. 08/412,834
Titanium Metals Corp. v. Banner, 778 F.2d 775, 782, 227 USPQ
773, 779 (Fed. Cir. 1985) does not establish a universal rule
regarding the obviousness of "close enough ranges" especially
where, as here, the claims require that a combination of
specific steps for treating a particular alloy composition are
conducted in a manner to result in a product alloy having
formability properties not disclosed in the applied prior art.
As stated by the Federal Circuit in In re Ochiai, 71 F.3d 1565,
1572, 37 USPQ2d 1127, 1133 (Fed. Cir. 1995), “reliance on per
se rules of obviousness is legally incorrect and must cease.”
While the Ikushima patent discloses some overlapping
conditions for cold working and aging an alloy, both the alloy
composition suggested by patentee and the annealing temperature
differ from that claimed. Ikushima is concerned with using
lower beryllium content alloys in forming a material with high
electroconductivity and spring performance. Ikushima also
discusses the relative formability properties of the alloy
(column 7, lines 15-33). In this regard, we are mindful that
Ikushima discloses that a prior art alloy with a composition
within the range called for by the appealed claims is known and
may be annealed at a higher temperature, cold worked, and aged
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