Appeal 2006-1306
Application 10/218,991
Great Lakes Chemical Corporation, 441 F.3d 991, 1000, 78 USPQ2d 1417,
1424 (Fed. Cir. 2006). “The [temperature range] disclosure is only that of a
range, not a specific temperature in that range, and the disclosure of a range
is no more a disclosure of the end points of the range than it is of each of the
intermediate points.” Id.
If the “polyol” in claim 1 is read to include xylitol, then the melting
temperature range would be 93-94.5°C for the “stabile form” (Reed, col. 4,
ll. 67) or 61-61.5°C for the metastable form (col. 4-5, ll, 68-1). Relative to
these temperatures, the temperature range disclosed by Reed (i.e., 100-200°F
(37.7-93.3°C)) is a comparatively broad range that does not necessarily
include disclosure of the endpoints (i.e., 100°F or 200°F) for applying a
molten xylitol coating. Id. Additionally, Reed provides no example at a
temperature within the “claimed” xylitol melting temperature ranges. Under
these circumstances, Reed’s broad temperature range cannot be found to
have disclosed with sufficient specificity the narrower temperature range of
xylitol so as to anticipate Appellants’ claim 1.
The Examiner also rejects claim 1 under § 102(b) over Mentink. The
Examiner states that Mentink discloses heating the xylitol to “at least
120°C” which would render the xylitol molten (Answer 4-5).
The Appellants make the same arguments they made with regard to
Reed (i.e., “molten polyol” is defined in the Specification, the plain meaning
of the term “molten” and claim differentiation). In addition to these
arguments, Appellants also argue that Mentink does not disclose a process
that includes coating with molten polyol (Br. 10). Rather, Appellants argue
that Mentink discloses cooling the polyol to below its melting point before
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