Appeal No. 2002-1768
Application 09/538,786
USPQ2d 1934, 1936 (Fed. Cir. 1990) (“The law is replete with cases in which the difference
between the claimed invention and the prior art is some range or other variable within the claims.
[Citations omitted.] These cases have consistently held that in such a situation, the applicant
must show that the particular range is critical, generally by showing that the claimed range
achieves unexpected results relative to the prior art range. [Citations omitted.]”).
Accordingly, since a prima facie case of obviousness has been established over Dietrich
by the examiner, we have again evaluated all of the evidence of obviousness and nonobviousness
based on the record as a whole, giving due consideration to the weight of appellants’ arguments.
See generally, In re Johnson, 747 F.2d 1456, 1460, 223 USPQ 1260, 1263 (Fed. Cir. 1984); In re
Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984).
We have carefully considered all of appellants’ arguments, which rely on “Oretel,
Polyurethane Handbook, 2nd Ed. (1993)” (Oretel) (brief, sentence bridging pages 4-5).
Appellants submit that “Dietrich et al. teach away from Appellants’ claimed invention . . .
[because after] reading [Dietrich], one having ordinary skill in the art would have been
discouraged from lowering the water content in the blowing agent to less than 1.0 by weight, as
set forth in Appellants’ claimed process” (id., page 4). Appellants contend that this person
“would be discouraged from decreasing the amount of water,” apparently from that used in the
Dietrich Examples, because “doing so would adversely affect” (1) “the hard segment content of
product foams;” (2) “ the exothermic heat required to complete polymerization and to vaporize
the co-blowing agent;” and (3) the “foam cell pressure and leads to decreased compression
strength of the foam” (id., pages 4, 5 and 6). Appellants rely on pages 13, 40 and 249, pages 16
and 249, and page 13 of Oretel, respectively.
Appellants attribute a number of teachings to Oretel without pointing out where these
particular teachings are found in the cited text. We find that the cited pages show that water
reacts with isocyanates to form urea and carbon dioxide with the carbon dioxide functioning in
the role of a blowing agent (page 13), which is only one method of including a blowing agent in a
process for preparing foam, as other blowing agents can also be used (page 16); wherein “urea-
containing hard segments . . . are formed from . . . water” (page 48) and “[u]nfortnuately, CO2
will quickly diffuse out of foams that are not covered with a diffusion-tight material . . . [and]
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