Appeal No. 1998-2166 Page 5
Application No. 08/572,792
Ltd., 830 F.Supp. 871, 874, 29 USPQ2d 1126, 1128 (E.D. N.C. 1993), aff’d, 34 USPQ2d 1565
(Fed. Cir.), cert. denied, 516 U.S. 988 (1995)(“[I]t is not sufficient that a person following the
disclosure sometimes obtain the result set forth in the claim, it must invariably happen.”).
The Examiner has provided insufficient evidence or technical reasoning tending to show that the
genera of prior art alloy compositions relied upon to establish unpatentability always or invariably have
a Curie temperature below 80 EC. In addition, the Examiner fails to point to any single exemplified
alloy having concentrations of alloy components within the ranges of the claim along with reasoning
tending to show that this particular alloy would inherently have a Curie temperature below 80 °C.
The Examiner points out that the prior art concentration ranges encompass the claimed ranges,
but that does not necessarily mean that each and everyone of the encompassed alloys necessarily has a
Curie temperature below 80 °C. In fact, Appellants indicate in the specification (Table 1, page 6) that
cobalt based alloys with 9 at. % Pt and 19 at. % Cr and 13 at. % Pt and 19.5 at. % Cr have Curie
temperatures above 80 °C. The alloys exemplified in the specification have concentrations of elements
in the claimed ranges yet do not have Curie temperatures in the claimed range. Therefore, the evidence
of record tends to show that not all the alloys in the prior art genera have a Curie temperature within the
claimed range.
Furthermore, the fact, pointed out by the Examiner (Answer, page 3), that Doerner indicates
that the concentration of chromium affects the Curie temperature does not establish that the Curie
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