Appeal No. 2002-0146
Application No. 09/110,128
of the disclosed range would provide beneficial results [id.,
page 5].
We are of the view that the examiner’s rejection of
claims 8 and 9 fails to establish a prima facie case of
obviousness. The examiner has failed to provide any support for
his position that the non-overlapping and non-touching range of
claims 8 and 9 would have been obvious over the range of Iwakawa.
As argued by appellant, the range in Iwakawa is determined to
solve a completely different problem than the range of the
claimed invention. The examiner has provided no evidence or
persuasive arguments as to why it would have been obvious to the
artisan to move the array in Iwakawa outside the disclosed range.
There is no reason to expect a beneficial result outside the
range disclosed by Iwakawa. Since the examiner has not properly
considered the range as claimed in claims 8 and 9, we do not
sustain the examiner’s rejection of these claims.
In summary, we have sustained the examiner’s rejection of
claims 1-7, but we have not sustained the rejection of claims 8
and 9. Therefore, the decision of the examiner rejecting claims
1-9 is affirmed-in-part.
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