Appeal No. 2004-0630
Application No. 09/755,177
the aqueous hydrogen peroxide to be within a range of from 1 to
5%. According to the examiner,
[i]t would have been obvious to one having ordinary
skill in the art at the time the invention was made to
have the concentration of [Kashiwase's] hydrogen
peroxide be 1 to 5% as disclosed in the claimed
invention, since it has been held that where the
general conditions of a claim are disclosed in the
prior art, discovering the optimum or workable ranges
involves only routine skill in the art.
(Answer, page 4). This obviousness conclusion is based on a
factual finding, which is plainly correct as previously
explained, and a legal principle, which is well settled (see
In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37
(Fed. Cir. 1990); In re Boesch, 617 F.2d 272, 276, 205 USPQ 215,
219 (CCPA 1980); In re Aller, 220 F.2d 454, 456, 105 USPQ 233,
235 (CCPA 1955)). Moreover, the appellant's afore-quoted
argument does not in any way contest the examiner's reliance on
this factual finding or legal principle.
Under these circumstances, we also shall sustain the
examiner's § 103 rejection of claim 12 as being unpatentable over
Kashiwase.
The decision of the examiner is affirmed.
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