Appeal No. 1997-2671
Application No. 08/446,473
effective variables as evinced by the Lokkesmoe patent. See
In re Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219 (CCPA 1980)
and In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA
1955) (cited by the examiner on page 6 of the answer).
Further, it is appropriate to regard the mole ratios of
Lokkesmoe’s composition, when so optimized, as falling within
the here claimed ranges in light of the common sanitizing uses
envisioned by patentee and the appellants for their respective
compositions.
Under the circumstances recounted above, we consider the
reference evidence adduced by the examiner to establish a
prima facie case at least of obviousness within the meaning of
35 U.S.C. § 103.
According to the appellants, they “have provided in the
working examples of their specification evidence of
patentability of its selected use of a peroxy acetic acid
concentrate over a known marketed peroxy acetic acid product”
(brief, page 8). However, this evidence involves a comparison
of the appellants’ inventive composition to a marketed product
known as OXONIA which is said by the appellants to be
described in U.S. Patent No. 4,051,058. It is well settled
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