Appeal No. 2004-2111
Application No. 09/535,550
sustain the examiner’s section 103 rejection of claim 27 as being
unpatentable over JP ‘051.
Nevertheless, we are convinced that JP ‘051 establishes a
prima facie case of unpatentability with respect to each of the
other rejected claims on appeal including those specifically
argued by the appellant. This is because the ingredient ranges
of the alloys disclosed by this reference include values which
are encompassed by these argued claims. Thus, the reference
expressly teaches or at least would have suggested the ingredient
concentrations defined by the rejected claims including argued
claims 6, 7, 9 and 22.
For example, the JP ‘051 reference teaches that the alloys
thereof should contain 0.08% or less of the impurities
phosphorous and sulphur, and, at a minimum, this teaching would
have suggested phosphorous and sulphur concentrations
respectively of less than about 0.005 weight percent as required
by claims 6 and 7. The 10% chromium concentration expressly
taught by this reference fully corresponds to the 10% chromium
2(...continued)
rejection by the examiner (compare the rejection as presented in
the final Office action mailed May 22, 2002 to the rejection as
presented in the examiner’s answer) indicates to us that the
inclusion of claim 27 in this rejection was due to an inadvertent
oversight on the examiner’s part.
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