Appeal No. 2005-1949
Application No. 09/829,168
As to the alternative obviousness rejection, to the extent
that there is any difference between appellant’s claims and the
disclosure of Meyer we also observe that when the difference
between the claimed invention and the prior art is the range or
value of a particular variable, then a prima facie case of
obviousness is properly established when the difference in the
range or value is minor. Haynes Int'l., Inc. v. Jessop Steel
Co., 8 F.3d 1573, 1577 n.3, 28 USPQ2d 1652, 1655 n.3 (Fed. Cir.
1993). Also, a claimed invention is rendered prima facie obvious
by the teachings of a prior art reference that discloses a range
that touches the range recited in the claim. In re Malagari, 499
F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974).
Finally, Meyer teaches that the desired result of obtaining
milk which can be used for practical feeding of carnivorous
animal whelps is obtained by “[a]ccurately maintaining the
content of essential amino acids and protein components and
matching the fatty acid pattern to that of the mother’s milk as
much as possible.” (Meyer, page 7, last paragraph). In other
words, adjusting the content of the milk to achieve the method as
claimed is a result-effective variable. It is not inventive to
discover optimum or workable ranges by routine experimentation,
and appellants have the burden of proving any criticality. In re
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