Appeal No. 2004-1590
Application No. 10/009,699
here, the prior art disclosure suggests the outer limits of the
range of suitable values, and that the optimum resides within
that range, and where there are indications elsewhere that in
fact the optimum should be sought within that range, the
determination of optimum values outside that range may not be
obvious.”). Here, the examiner does not provide a specific
explanation of any overlap. Also, appellants explain how their
claimed ratio and concentration are not close to the teachings of
Handrick. Accordingly, we determine that the examiner has not
set forth a prima facie case.
In view of the above, we reverse this rejection.
II. The 35 U.S.C. § 103 rejection of claims 17 through 24 as
being obvious over Ogilvie in view of Handrick
Also, beginning on page 6 of the brief, appellants argue
that in view of Handrick’s failure to suggest appellants’ claimed
process (as discussed previously in connection with the
aforementioned rejection), appellants submit that Ogilvie in view
of Handrick does not suggest the claimed invention.
Hence, for the same reasons that we reversed the
aforementioned rejection, we reverse this rejection also.
Ogilvie does not cure the deficiencies of Handrick.
We need not address issues of rebuttal evidence (as
discussed, for example, by appellants on page 7 of the brief) in
light of our determination that the examiner has not set forth a
prima facie case of obviousness.
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