Appeal No. 2002-2057
Application No. 09/351,147
an unexpected criticality for the claimed range of Si/Al molar
ratios at the upper limit, i.e. at “about 70.”2
Summary
In summary, our disposition of this appeal is as follows:
the rejection under 35 U.S.C. § 102(b) of appealed claims
1, 2, 5, 7, and 10 as anticipated by EP ’736 is reversed;
the rejection under 35 U.S.C. § 103(a) of appealed claims
3, 4, and 6 as unpatentable over EP ’736 is reversed; and
the rejection under 35 U.S.C. § 103(a) of appealed claims 8
and 9 as unpatentable over EP ’736 in view of Drake is reversed.
We have also outlined certain issues for further consideration
by the examiner and the appellants.
2 In this regard, it is well settled that “[w]hen an
applicant seeks to overcome a prima facie case of obviousness by
showing improved performance in a range that is within or
overlaps with a range disclosed in the prior art, the applicant
must ‘show that the [claimed] range is critical, generally by
showing that the claimed range achieves unexpected results
relative to the prior art range.’” In re Geisler, 116 F.3d
1465, 1469, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997)(quoting In re
Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir.
1990)).
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