Appeal No. 2003-0802 Page 5
Application No. 09/180,108
short chain nonionic surfactants, surfactants (c), to long chain surfactants, surfactants (d), of 1:5
(Evers, col. 3, ll. 47-49). As the ratio is merely a minimum ratio, it indicates that larger amounts
of short chain surfactants, including the claimed ratios, can be used (col. 3, ll. 34-35). The
evidence supports the Examiner’s finding that Evers describes ingredients of the type claimed in
overlapping ranges. In fact, the broader ranges of Evers completely encompass the claimed
surfactant ratios. In such a situation, the conclusion of prima facie obviousness is even more
compelling than in cases of mere overlap. Peterson, 315 F.3d at 1329-30, 65 USPQ2d at
1382-83.
Moreover, following Appellants’ logic that the claim is directed to long chain
combinations and Evers is silent with respect to the concentration ratio of long chain mixtures,
that fact does not preclude a prima facie case of obviousness. On the contrary, the disclosure of
Evers indicates that selecting the proper concentration would have required no more than routine
experimentation by one of ordinary skill in the art. Such routine experimentation would have
been well within the ordinary skill in the art and is a proper basis for a prima facie case of
obviousness. See In re Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362, 1365 (Fed. Cir.
1997)(quoting In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) for the
proposition that “it is not inventive to discover the optimum or workable ranges by routine
experimentation.”). It is well settled that where patentability is predicated upon a change in
condition of a prior art process, such as a change in concentration, the burden is on the applicant
to establish unobviousness of the process through unexpected results or other evidence of
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