Appeal No. 2006-1654
Application No. 09/929,488
asserts in the rejection that optimization of the results effective variable β to
comprise appellant’s ranges of 0.5 to 4.0 degrees and 1.5 to 2.0 degrees
would have been obvious to those having ordinary skill in the art of liquid
crystals [id.]. We note that the Court of Appeals for the Federal Circuit has
found that “[s]electing a narrow range from within a somewhat broader
range disclosed in a prior art reference is no less obvious than identifying a
range that simply overlaps a disclosed range.” In re Peterson, 315 F.3d at
1329-30, 65 USPQ2d at 1382 (“In fact, when, […] , the claimed ranges are
completely encompassed by the prior art, the conclusion is even more
compelling than in cases of mere overlap. The normal desire of scientists or
artisans to improve upon what is already generally known provides the
motivation to determine where in a disclosed set of percentage ranges is the
optimum combination of percentages.”) [emphasis added].
In the instant case, we find that the examiner, as finder of fact, has
clearly met his/her burden of establishing a prima facie case of obviousness
with the findings set forth in the rejection that the broader range taught by
Ohta ‘116 completely encompasses the claimed range of 0.5 to 4.0 degrees
[answer, page 13; see also claim 1]. Accordingly, we will sustain the
examiner’s rejection of representative claim 1 as being unpatentable over
the teachings of Baur in view of Ohta ‘116 for essentially the same reasons
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