Appeal 2006-2468
Application 10/149,875
made in the context of the particular facts and issues before the court in
Atofina. In particular, it is noted that consideration of several argued process
distinctions of the claimed gas-phase catalytic fluorination process for
forming difluoromethane over the applied prior art generic fluorination
process disclosure was before the court in addition to the reversible error in
the district court’s application of Titanium Metals. For example, the claimed
process required a specific methylene chloride starting material and product,
a narrow range (0.1 to 5 percent or 0.1 moles per 100 moles) for a molar
ratio of oxygen to methylene chloride, and a narrow reaction temperature
range (330 to 450 degrees Celsius) using a specific catalyst. Against that
backdrop, the court’s holding in Atofina should be narrowly construed given
the narrow overlap in the preferred process temperature (150 to 350 degrees
Celsius) together with the narrow overlap in oxygen ratio (.001 to 1 percent)
presented by the applied reference before the court. Atofina, 441 F.3d at
1000, 78 U.S.P.Q. 2d at 1424.
Here, the overlap in the claimed subsumed range, as was the case in
Perricone, is not narrow, but significant. The claimed narrower range for
each of the selected representative claims encompasses the midpoint of the
most preferred range described by Seiden. In essence, Appellants are
broadly claiming at the heart of the described invention of Seiden.
Accordingly, it is my view that Appellants' arguments respecting the
claimed ranges are not persuasive of reversible error in the Examiner’s
anticipation holding.
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