Appeal No. 2002-1644 Page 11
Application No. 08/602,498
“mainly a ‘niche’ product, sold for use in cold weather.” As set forth in In re Tiffin,
448 F.2d 791, 792, 171 USPQ 294, 294 (CCPA 1971), evidence of secondary
considerations such as commercial success must be commensurate in scope
with the claims under review. Since claim 21 does not limit the method to “cold
weather” applications, the evidence of commercial success is not commensurate
in scope with claim 21.
Kabara teach a topical antimicrobial pharmaceutical composition for use
as a teat dip, comprising (1) a glycerol fatty acid ester, (2) a mixture of two C6-
C18 fatty acids and (3) a pharmaceutically acceptable carrier. See Abstract and
page 3, lines 51-52. At page 5, Kabara teaches that a preferred carrier generally
includes, inter alia, an alcohol such as propylene glycol. According to Kabara
(page 6, lines 4-6), “[t]he alcohols discussed above may be employed in the
compositions and methods of the present invention at any suitable level. In a
preferred embodiment, they are present at a level of about 5 to about 60%….”
With regard to the claimed range and the range taught by Kabara, we
recognize that a range that overlaps a range disclosed by the prior art may be
patentable if appellants can show criticality in the claimed range by evidence of
unexpected results. In re Wertheim, 541 F.2d 257, 267, 191 USPQ 90, 100
(CCPA 1976). However, as discussed above, we are not persuaded by
appellants’ evidence of unexpected results or commercial success.
For the foregoing reasons, we affirm the rejection of claim 21 under
35 U.S.C. § 103 as being unpatentable over Kabara. As set forth above claims
22-24 fall together with claim 21.
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