Appeal No. 2006-1654
Application No. 09/929,488
Appeals for the Federal Circuit has also determined “[w]hen an applicant
seeks to overcome a prima facie case of obviousness by showing improved
performance in a range that is within or overlaps with a range disclosed in
the prior art, the applicant must ‘show that the range is critical, generally by
showing that the claimed range achieves unexpected results relative to the
prior art range.’ ” In re Geisler, 116 F.3d 1465, 1469–70, 43 USPQ2d
1362, 1365 (Fed. Cir. 1997), citing In re Woodruff, 919 F.2d 1575, 1578, 16
USPQ2d 1934, 1936 (Fed. Cir. 1990). The Court of Appeals for the Federal
Circuit has also found that a comparison to the closest prior art may provide
the requisite showing of unexpected results. In re De Blauwe, 736 F.2d 699,
705, 222 USPQ 191, 196 (Fed. Cir. 1984) (“When an article is said to
achieve unexpected (i.e. superior) results, those results must logically be
shown as superior compared to the results achieved with other [prior art]
articles … Moreover, an applicant relying on comparative tests to rebut a
prima facie case of obviousness must compare his claimed invention to the
closest prior art.”).
We note that appellant asserts that the engineering graphs of the
figures of the instant specification provide the evidence of the unexpected
results that are obtained when twist angle β is set within the narrow ranges
prescribed by the claimed invention [corrected brief, page 7]. Appellant
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