Appeal No. 2002-0693
Application No. 09/073,686
The ranges of the disclosed elements, including the non-
combustible percentage, appear to overlap or abut those as are
claimed. Thus, on balance, we conclude that the claimed ranges are
obvious. See, e.g., In re Woodruff, 919 F.2d 1575, 1578, 16
USPQ2d 1934, 1936-37 (concluding that a claimed invention was
rendered obvious by a prior art reference whose disclosed range
(“about 1-5%” carbon monoxide) abutted the claimed range (“more
than 5% to about 25%” carbon monoxide)).
Therefore, we conclude that the disclosure of Davis alone
renders the claimed invention obvious. The burden of proving the
prior art (less than 50 parts per hundred polymer of fire
retardant additives) did not have the claimed characteristics
properly shifted to the appellants. Further, if the claimed
ranges of the appellants are to be designated as critical, the
appellants bear that burden as well, generally by showing that the
claimed range achieves unexpected results relative to the prior
art range. Woodruff, 919 F.2d at 1578, 16 USPQ2d at 1936.
In contesting the prima facie case of obviousness, the
appellants have placed into the record the declaration of one
James A. Davis (paper #11), who is an inventor in common with the
cited reference and the instantly claimed invention. While being
five pages in length, it is generally devoid of useful evidence.
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