Appeal No. 2002-0089
Application No. 09/331,647
Brief, pages 3-4).
Schambil describes a percentage range of wax ester that can be used in the emulsion and
describes the use of such emulsions for skin-care and body-care formulations. Both the examiner
and appellants’ appear to agree that Schambil generally teaches a wax ester range that overlaps
the claimed range of 30 to 40% wax ester. In view of Schambil’s teaching of the use of a range,
it would have been obvious for one skilled in the art to vary the proportions of wax ester in
Schambil to arrive at the best emulsions for skin-care and body-care formulations. Indeed, "it is
not inventive to discover the optimum or workable ranges by routine experimentation." In re
Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Only if the "results of optimizing
a variable" are "unexpectedly good" can a patent be obtained for the claimed critical range. In re
Antonie, 559 F.2d 618, 620, 195 USPQ 6, 8 (CCPA 1977); see also In re Dillon, 919 F.2d 688,
692, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990) (in banc). As appellants have failed to identify
persuasive factual evidence of unexpected results for the claimed amounts of wax ester, we hold
that appellants’ claims are unpatentable under 35 U.S.C. § 103(a) over Schambil.
Conclusion
The decision of the examiner to reject claims 8-20 under 35 U.S.C. § 103(a) over CA
1,334,458 is Affirmed. All other rejections contained in the examiner’s answer are Reversed.
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