Appeal No. 2004-2247 Page 3
Application No. 09/835,701
OPINION
Appellants’ claimed product and the products of Albacarys and Wagner are disposable
single use, substantially dry cleansing cloths. Appellants state that they have found that
“compositions for impregnation onto the cloths should have a viscosity ranging from about 100
to about 200,000 cps as measured on a Haake CV 20 Rheometer with 30 mm profiled parallel
plates at 23 °C.” (Brief, p. 6). Appellants’ main argument is that neither Albacarys nor Wagner
“discloses the viscosity element of the present claims.” (Brief, pp. 7-8). Appellants also argue
that, contrary to the findings of the Examiner, Albacarys does not disclose the claimed surfactant
to water ratio (Brief, p. 8). We select claim 1 to represent the issues on appeal with regard to
these arguments.
We focus on the argument directed to the surfactant to water ratio first. In support of
their argument, Appellants draw our attention to column 9, lines 2-4 of Albacarys. According to
Appellants, this portion of Albacarys discloses a concentration range for a lathering surfactant,
not a range for the total of all lathering surfactants (Brief, p. 8). According to Appellants, it is the
total amount of surfactants which is required for Appellants’ claimed weight ratio (Brief, p. 8).
The conclusion Appellants wish us to draw is that Albacarys does not suggest the claimed
surfactant to water ratio to one of ordinary skill in the art.
We do not agree with the interpretation of the Albacarys reference advanced by
Appellants. A reading of column 9, lines 2-4 in the context of the full paragraph and in
combination with the next paragraph makes it clear that Albacarys is referring to the total
lathering surfactant level (Albacarys, col. 8, l. 66 to col. 9, l. 14). Albacarys discloses levels of
lathering surfactant (Albacarys, col. 9, ll. 2-6) and water (Albacarys, col. 4, ll. 61-65) which,
when translated into ratios, overlap with the levels encompassed by the claimed weight ratio of
from about 1:2 to about 20:1 of lathering surfactant to water. A prima facie case of obviousness
typically exists when the ranges of a claimed composition overlap the ranges disclosed in the
prior art. In re Geisler, 116 F.3d 1465, 1469, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997); In re
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