Appeal No. 2003-1713
Application No. 09/853,727
c) a non-emulsifying silicone elastomer at from
about 0.1 to about 30%; and
d) antiperspirant or deodorant active ingredient.
The examiner relies upon the following reference as
evidence of unpatentability:
Edwards et al. (Edwards) WO 98/18438 May 7, 1998
Claims 1 through 27 stands rejected under 35 U.S.C.
§ 103 as being unpatentable over Edwards.
On page 12 of brief, appellants state that the claims
stand or fall together. We therefore consider claim 1 in
this appeal. 37 CFR § 1.192 (c)(7)and (8)(2000).
OPINION
For the reasons set forth in the answer, we affirm the
rejection. Our comments below are for emphasis only.
On page 13 of the brief, appellants argue that the
examples of Edwards use 18% structurant, whereas their
claimed invention requires a claimed amount of from “about
1 to about 10%” structurant.
We note that a reference is not limited to its
examples, but is available for all that is fairly discloses
and suggests. See In re Widmer, 357 F.2d 752, 757, 147
USPQ 518, 523 (CCPA 1965). As correctly pointed out by the
examiner, Edwards discloses, on page 3 at lines 33 through
35, that the amount of structurant can be from 5 to 30%.
This range overlaps appellants’ claimed range “about 1 to
about 10%”. We also find that on page 3 of Edwards, at
lines 13 through 16, Edwards teaches an amount of
structurant comprising “up to 40%”.
We note that in cases involving overlapping ranges, it
has been consistently held that even a slight overlap in
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