Appeal No. 1998-2032
Application No. 08/410,048
With regard to the remarks on page 5 of the
supplemental answer, the examiner has misapplied the ruling
in In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA
1955) (discovery of an optimum range by routine
experimentation is not patentable). In the case before us,
we are not concerned with ranges of any kind. The claimed
difference in structure, namely the triangular plate in
appellant=s invention as compared with the bar like forming
member in the primary references and the triangular frames
in the secondary references, cannot be likened to a
difference in numerical ranges.
The examiner=s decision to reject claims 1-24 as
unpatentable over the `999 Baldacci patent in view of each
of the secondary references (namely the `776 Ottaviano
patent, the `613 Ottaviano patent and the Komaransky
patent) is reversed, the examiner=s decision to reject
claims 1-24 as unpatentable over the `581 Baldacci patent
in view of each of the foregoing secondary references is
reversed and the examiner=s decision to reject claims 1-24
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