Appeal 2006-2468
Application 10/149,875
2006 Order of this panel of the Board of Patent Appeals and Interferences.
Appellants assert that:
Based on the holdings of Perricone and Atofina, Appellants
respectfully request that the Board reverse the rejection of the
present claims under 35 U.S.C. §102. According to both
Perricone and Atofina, and as set forth previously, the Federal
Circuit has held that anticipation may only be found if the prior
art's disclosed range both entirely encompasses and does not
significantly deviate from the range claimed in the later-filed
case. Moreover, even if both conditions are satisfied, the
disclosure of a genus in the prior art is not necessarily a
disclosure of every species in that genus, unless the genus is
very small.
Presently, claims 1, 2 and 9-18 relate to compositions
generally comprising from about 65% to about 80% of a polyol
fatty acid polyester and from about 20% to about 35% reduced
calorie triglycerides, while claims 3-6, 8, 19-22, 25-40, 42-60
and 62-69 comprise from about 70% to about 80% of a polyol
fatty acid polyester and from about 20% to about 30% reduced
calorie triglycerides. In contrast, Selden teaches from about
10% to about 95% polyol polyesters and from about 5% to
about 90% reduced calorie triglycerides. Consistent with the
holdings of Perricone and Atofina, Seiden does not anticipate
the present claims because even though Seiden's ranges may
arguably encompass Appellants' claimed ranges, Seiden's
ranges significantly deviate therefrom. In Perricone, the
difference between the ranges of Perricone and Pereira was less
than about 10%. In contrast, the difference in the present ranges
and those of Selden varies from 15% up to 55% (i.e. the present
case claims 65% to 80% polyol polyester while Seiden claims
10% to 95% polyol polyester. That amounts to a difference of
55% on the low end and 15% on the upper end of the range).
Additionally, like the temperature range in Atofina, the ranges
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