Appeal No. 2000-1019
Application No. 08/623,852
precipitate undesirable metal values has no bearing on our
discussion of this rejection.
In sum, Bender discloses a process of solubilizing metals
from a metal containing material by contacting it with sulfuric
acid, a reducing agent, and a carbon source (Bender, column 4,
lines 57 through 63, column 8, lines 42 through 44, column 9,
lines 5 through 7). Bender also discloses heating the mixture to
temperatures ranging from 85 to 91°C, with specific examples at
85, 89, 90 and 91°C (Bender, column 34, lines 34 through 41,
column 35, lines 52 through 60, column 42, lines 33 through 41,
column 43, lines 25 through 33). The court in In re Wertheim
teaches that “the disclosure in the prior art of any value within
a claimed range is an anticipation of the claimed range.” 541
F.2d 257, 267, 191 USPQ 90, 100 (CCPA 1976). Bender clearly
discloses four values within the appellants’ claimed range of 75-
95°C. Furthermore, Bender discloses the separation of the
resulting solution from the remaining solids (Bender, Figures 1
through 10).
Although claim 1 stands rejected under 35 U.S.C. § 103(a)
over Bender in view of Pazdej, it appears that Bender, alone,
discloses every limitation of claim 1. The court in In re
Fracalossi has stated that a claimed invention “cannot have been
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