Appeal No. 2006-1654
Application No. 09/929,488
claiming a narrower range within the range of Baur is insufficient for
patentability [answer, page 22]. The examiner argues that it is clear from
Baur that increasing the twist angle to something greater than zero will
improve switching speed and reduce switching voltage, because the small
twist angle mechanically approaches the “on” condition (i.e., the twist turns
the pixel partially on) [id.]. The examiner notes that the penalty is reduced
contrast (i.e., moving further from the off state), but this is acceptable
especially for low ambient light applications due to the insensitivity of the
human eye. The examiner concludes that appellant’s specification and
figures do not show any unexpected results [id.].
We note that appellant has admitted that the narrow ranges (e.g., 0.5
to 4.0 degrees) for twist angle β prescribed in the instant invention are
included in the wider range of Baur (e.g., -15 to + 15 degrees) [corrected
brief, page 6; see also Baur at col. 13, lines 43 and 44]. The Court of
Appeals for the Federal Circuit has recently reaffirmed that where the
claimed ranges are completely encompassed by the prior art, the conclusion
that the claims are prima facie obvious is even more compelling than in
cases of mere overlap. In re Harris, 409 F.3d 1339, 1341, 74 USPQ2d 1951,
1953 (Fed. Cir. 2005) citing In re Peterson, 315 F.3d 1325, 1330, 65
USPQ2d 1379, 1382 (Fed. Cir. 2003) [emphasis added]. The Court of
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