Appeal No. 2002-0146
Application No. 09/110,128
that this claimed range achieves unexpected results relative to
the prior art range. With respect to the criticality argument,
the examiner has essentially ignored this data because the
examiner finds that the prior art discloses a range within or
touching the claimed range [answer, pages 4-5].
It was improper for the examiner to fail to consider the
data submitted by appellant and appellant’s arguments related to
criticality and unexpected results. The overlapping ranges of
the prior art and the claimed invention only establish a prima
facie case of obviousness which can be overcome by appellant with
evidence showing non-obviousness. Thus, appellant’s evidence
must be considered to determine if it overcomes the prima facie
case of obviousness.
Despite the examiner’s failure to consider the data
submitted by appellant, we find that the evidence filed as part
of appellant’s specification does not establish the criticality
of the claimed range nor does the data demonstrate that the
results obtained over the claimed range are unexpected. The
table of data merely indicates whether or not the movement of the
heating array downstream from the center of the platen roller for
certain distances produced desired, acceptable or unacceptable
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