Appeal 2006-2507
Application 10/106,473
100 F.3d 135, 139, 40 USPQ2d 1685, 1688-89 (Fed. Cir. 1996) (affirming
the rejection of claims requiring thickness ratios above those employed in
the prior art).2 See In re Schwarze, 536 F.2d 1373, 1377, 190 USPQ 294,
296 (CCPA 1976) (affirming an obviousness rejection of a claim to a
chemical process in which the first stage was conducted at 0-50°C when the
prior art process conducted the first stage at 60-90°C); In re Hill, 284 F.2d
955, 958-59; 128 USPQ 197, 199 (CCPA 1960) (affirming an obviousness
rejection of a claim to a chemical process conducted at 150-250°C when the
prior art disclosed the same reaction at 300°C); In re Aller, 220 F.2d 454,
456, 105 USPQ 233, 235 (CCPA 1955) (“Normally, it is to be expected that
a change in temperature, or in concentration, or in both, would be an
unpatentable modification. Under some circumstances, however, changes
such as these may impart patentability to a process if the particular ranges
claimed produce a new and unexpected result which is different in kind and
not merely in degree from the results of the prior art”). Appellants have not
directed us to any evidence of unexpected results or shown that the prior art
teaches away from the claimed range. See C.R. Bard, Inc. v. Advanced
Cardiovascular Systems, 911 F.2d 670, 674 n.2, 15 USPQ2d 1540, 1544 n.2
(Fed. Cir. 1990) (attorney arguments are not evidence). See also, In re
2“The difference between the Huang grip and the prior art was that the
Huang grip increased the thickness of the polyurethane layer relative to the
textile layer, and had greater shock-absorbing qualities. There was nothing
new or unexpected about this result because the prior art taught "that shock
absorption derives in part from the compressible nature of the polyurethane
layer. Given that the polyurethane layer absorbs shock, one of ordinary skill
would logically infer that increasing the amount of the shock absorbing
material (the polyurethane) would lead to an increase in the amount of shock
absorption." Id.
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