Appeal No. 2005-1247
Application No. 09/963,423 Page 9
either side of the claimed value (number). See Eiselstein v.
Frank, 52 F.3d 1035, 1038-40, 34 USPQ2d 1467, 1470-71 (Fed. Cir.
1995).
However, the mere existence of such tolerance in the range
endpoints does not relieve the examiner from the burden of
explaining how each of the applied Reiff patents provides a
description of a solid, pulverulent, water-dispersible, blocked
polyisocyanate adduct having particle diameters that fall within
the range of variance of particle sizes permitted by the claim
language in the case before us.
The mere assertion that such is the case because of an
alleged relative closeness of the upper endpoint (500 or 800
millimicrons) of a range of average sizes for already water-
dispersed particles in the applied references versus appellants’
claimed lower limit for particle sizes of about 1 :m (1,000
millimicrons) for appellants’ pulverulent (powder form), water-
dispersible, blocked, polyisocyanate solid adduct does not serve
to fairly discharge the examiner’s burden to establish that one
of ordinary skill in the art would recognize a description of a
product or process as called for by appellants’ claims, including
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