Appeal No. 2006-2181
Application No. 10/878,586
Furthermore, even if it can be argued that the specification
examples provide descriptive support for the ratios of 10:1 and
15:1, there is absolutely no descriptive support for the broad
claimed ranges of "at least 10:1" and "at least 15:1," which
have no upper limit. Although the ratio 15:1 falls within the
claimed range of at least 10:1, this one value does not support
the much broader range having no upper limit. Appellants cite
Ralston Purina Co. v. Far-Mar-Co., Inc., 772 F.2d 1570, 1576,
227 USPQ 177, 180 (Fed. Cir. 1985) for the proposition that
"providing examples within the range is sufficient to support
claims to the open ended range" (page 4 of Reply Brief, second
paragraph). However, Ralston fails to provide precedential
support for the proposition advanced by appellants but, rather,
is particularly tied to a specific set of facts. As stated in
Ralston, "[p]recisely how close the original description must
come to comply with the description requirement of 35 U.S.C.
§ 112 must be determined on a case-by-case basis." Ralston,
772 F.2d at 1575, 227 USPQ at 179. In Ralston the trial court
considered evidence regarding the purpose of moisture in the
mixture, the physical characteristics of mixtures having
different levels of water, the type of test and its degree of
accuracy in testing for moisture level, and the approximate
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