Appeal No. 2002-0146
Application No. 09/110,128
deviation disclosed by Iwakawa. Thus, appellant argues that the
claimed invention is patentable over the admitted prior art and
Iwakawa because the claimed invention solves a completely
different problem than the device of the applied prior art.
Appellant also argues that he has shown that the claimed range is
critical by showing that the claimed range achieves unexpected
results relative to the range disclosed in the applied prior art
[brief, pages 5-9]. The examiner responds that it is enough that
Iwakawa teaches a range which overlaps or touches the claimed
range. The examiner also responds that the criticality argument
is not persuasive because the applied prior art discloses a
deviation of the array within or touching the claimed range
[answer, pages 4-5].
We will sustain the examiner’s rejection of claim 1.
Appellant’s argument that the deviation of the heating array in
Iwakawa is made for a different reason than in the claimed
invention is not persuasive. Regardless of the reason for moving
the heating array, the invention of claim 1 includes within its
scope structures which are clearly taught by Iwakawa. The test
for obviousness is whether the references would have suggested
doing what appellants have done. In re Keller, 642 F.2d 413,
425, 208 USPQ 871, 881 (CCPA 1981). Thus, the absence of express
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