Appeal 2006-2468
Application 10/149,875
embodiment or of specific significance apart from the other values within
the range such that there is anticipation. The endpoint is not even a discrete
endpoint as it is prefaced with “about.” Moreover, the disclosure here is
only that of a range, not a specific concentration in that range. The
disclosure of a range is no more a disclosure of the endpoints of the range
than it is of each of the intermediate portions. See Atofina v. Great Lakes
Chem. Corp., 441 F.3d 991, 1000, 78 U.S.P.Q.2d 1417, 1424 (Fed. Cir.
2006)(“[T]he disclosure of 150 to 350 °C does not constitute a specific
disclosure of the endpoints of that range, i.e., 150 to 350°C, as Great Lakes
asserts. The disclosure is only that of a range, not a specific temperature in
that range, and the disclosure of a range is no more a disclosure of the end
points of the range than it is of each of the intermediate points.”).
Nor can we agree that the broader ranges relied upon by the Examiner
(about 10% to about 95% PFAP and about 5 to about 90% RCT) or even the
preferred ranges articulated in Seiden (about 65% to about 95% PFAP and
about 5% to about 90% RCT) support a finding of anticipation. Even
though the claimed ranges of about 65% to about 80% PFAP and about 20%
to about 35% are fully within the preferred ranges of Seiden, Seiden
indicates that the optimal range for any particular combination of PFAP and
RCT is dependent on a number of factors including the physical properties
of the selected PFAP, the level of long chain saturated fatty acids in the
RCT, the intended use, and the properties desired (Seiden, col. 10, ll. 45-50
and col. 12, ll. 5-10). One must first select a particular PFAP meeting the
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