Appeal No. 2003-1930
Application No. 09/797,326
37 CFR § 1.197(b) (1997) provides as follows:
Appellant may file a single request for rehearing within two months from
the date of the original decision, unless the original decision is so modified
by the decision on rehearing as to become, in effect, a new decision, and the
Board of Patent Appeals and Interferences so states. The request for
rehearing must state with particularity the points believed to have been
misapprehended or overlooked in rendering the decision and also state all
other grounds upon which rehearing is sought. See § 1.136(b) for
extensions of time for seeking rehearing in a patent application and §
1.550(c) for extensions of time for seeking rehearing in a reexamination
proceeding.
We have reconsidered our decision of September 26, 2003 in light of Appellants’
comments in the request for rehearing, and we find no error therein. We, therefore, decline
to make any changes in our prior decision for the reasons which follow.
Appellants assert that “[t]he Board did not understand that Appellants have provided
evidence demonstrating an unexpected result.” (Rehearing request, p. 1). We disagree. As
indicated at page 8 of our decision, “Appellants can over come a prima facie case of
obviousness by establishing the claimed range achieves unexpected results relative to the
prior art range.” See In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed.
Cir. 1990). (“The law is replete with cases in which the difference between the claimed
invention and the prior art is some range or other variable within the claims. See, e.g.,
Gardner v. TEC Sys., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir.), cert. denied, 469
U.S. 830 [ 225 USPQ 232 ] (1984); In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA
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