Appeal No. 2003-0777
Application No. 09/554,969
highest level of electrolyte exemplified in the reference is
0.25%.
Appellants’ arguments are unavailing since it is well
settled that it is a matter of prima facie obviousness when a
claimed range encompasses or overlaps a prior art range. In re
Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir.
(1990); In re Wertheim, 541 F.2d 257, 263, 191 USPQ 90, 97 (CCPA
1976); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553
(CCPA 1974). Also, when, as here, the prior art discloses values
that fall directly within a claimed range, there is an
anticipation of the claimed range. As for appellants’ argument
that WO ‘169 discloses that the presence of electrolyte is
optional, and that the reference teaches a more preferable and
exemplified amount of electrolyte that is below the claimed lower
limit, the examiner has properly explained that all the teachings
of a reference must be considered in determining obvious under §
103, and such consideration is not limited to the preferred
embodiments of the reference. In re Lamberti, 545 F.2d 747, 750,
192 USPQ 278, 280 (CCPA 1976).
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