Appeal No. 2005-1934 Page 5
Application No. 10/022,357
Examples 3-4 and p. 1, l. 87 to p. 2, l. 13). Example 6 describes the formation and adherence of
two oxide layers, each involving heating to form, adhere and harden the layer onto the surface
supporting it. We agree with the Examiner that Beer suggests two distinct sintering operations
each at temperatures that overlap the temperatures claimed (Answer, pp. 2-3). That is enough, in
the present circumstances, to support a prima facie case of obviousness and shift the burden to
Appellants to show criticality of their claimed ranges. Woodruff, 919 F.2d at 1578, 16 USPQ2d
at 1936-37.
Appellants’ interpretation of the reference provided in the Reply Brief is unpersuasive as
well (Reply Brief, pp. 3-5). We cannot agree that the first and second steps described in
Example 6 of Beer are really only a single step (Reply Brief, p. 3). Beer specifically discloses
applying three heat treatments to the plate coated with a porous layer (0.01-10 mm) of metal
oxide (p. 3, ll. 89-108) and then discloses “[a] plate thus provided with a porous oxide coating in
a thickness of 0.01 to 10 mm is then coated with ruthenium oxide ... in accordance with the
present invention” (p. 3, l. 125 to p. 4, l. 2). Clearly, two layers of material are formed on the
titanium plate. Moreover, the “present invention” of Beer is a process of applying a coating
using a solution and a three step heat treatment (p. 1, l. 92 to p. 2, l. 13). Example 6 makes it
clear that there are two steps of applying a solution and heating at three temperature levels.
Appellants acknowledge that Beer suggests sintering at 400-650°C, a temperature range
that overlaps the ranges claimed, to oxidize a coating solution, but Appellants point out that, in
the course of practically producing the electrode, the sintering temperature does not exceed
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