Appeal No. 2006-1587
Application No. 10/020,768
terephthalate fiber of “about 12 microns.” As acknowledged by
the Examiner and the Appellant, Heidweiller does not explicitly
teach the diameter of the organic fibers (Answer, page 3; Brief,
page 8). Nevertheless, the Examiner calculates the diameter to
be 12.4 microns (Answer, page 3). As with the glass fiber
content, the Examiner concludes that the diameter of the
polyethylene terephthalate fiber would have been obvious to one
having an ordinary level of skill in this art because it is “a
result effective variable [that] is optimizable to Applicant’s
Comment [s6]: Inserted extra space
claimed range” (Answer, page 15). Following the Examiner’s after the period.
methodology, and assuming that the full range of Heidweiller’s
disclosed deniers apply to the polyethylene terephthalate,
Appellant calculates the diameter range for Heidweiller’s
polyethylene terephthalate fibers to be from 12.4 to 71.5
microns, a range that Appellant states is “well outside the
claimed range” (Brief, page 8).
We find ourselves once more addressing the issue where the
upper limit of a claimed range (about 12 microns) and the lower
limit of the range calculated for Heidweiller’s polyethylene
terephthalate fibers are “so close that prima facie one skilled
in the art would have expected them to have the same
properties.” Titanium Metals Corp., 778 F.2d at 782-83, 227
USPQ at 779. We agree with the Examiner for reasons presented
above. The Appellant’s argument is insufficient to convince us
that a polyethylene terephthalate fiber with a diameter of
“about 12 micron,” such as 12.1 microns, would not have been
obvious to an artisan based on the 12.4 micron diameter of
Heidweiller’s fibers. On the contrary, an artisan would have
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