Appeal No. 1997-2175
Application No. 08/201,522
thoroughly explained in the Brief, however, that the 1.5%
concentration disclosed by Nambu relates to the aqueous
solution used for producing Nambu's dressing material, and,
because this solution is ultimately subjected to a required
dehydration step, the final concentration of polyvinyl alcohol
will necessarily be greater than 1.5%.
The examiner in her Answer has not disputed or even
acknowledged the above noted explanation. Further, the
examiner has offered utterly no reason as to why one with
ordinary skill in the art would have lowered the polyvinyl
alcohol concentration of Nambu's dehydrated product from a
value which is above 1.5% (i.e., the lowest value of Nambu's
range) to less than 1.5% (i.e., the highest value of the
appellant's claimed range). Indeed, Nambu teaches away from
lowering his polyvinyl alcohol concentration to a value within
the here claimed range for the reasons detailed in the Brief.
In light of the foregoing, it is clear to us that the
examiner has failed to carry her burden establishing a prima
facie case of obviousness and accordingly that the examiner
improvidently shifted to the appellant the burden of
establishing "criticality" or nonobviousness. Under these
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