Appeal 2006-0009
Reexamination Control 90/005,589
Patent 5,940,464
1 Arguments not raised in the briefs before the Board and evidence not
2 previously relied upon in the briefs are not permitted in the request for
3 rehearing except as permitted by 37 C.F.R. § 41.52(a)(2) and (3). See 37
4 C.F.R. § 41.52(a)(1) (2006).
5 The claimed invention is directed to a tube of zirconium-base alloy
6 containing 0.2% to 0.6% tin.1 Sabol discloses a tube of zirconium alloy
7 comprising “up to 1.5 percent tin.” Sabol, col. 2, ll. 8-14.
8 The Appellant argues that Sabol does not suggest an amount of tin
9 below 1.0 percent. The Appellant argues that the Board misapprehended or
10 overlooked statements in Sabol emphasizing that zirconium alloys
11 containing 1.0 percent tin exhibit improved corrosion resistance. See Sabol,
12 col. 4, ll. 9-11; see also Sabol, col. 1, l. 56-col. 2, l. 5. Pointing to Table I,
13 the Appellant also argues that Sabol does not provide any experimental data
14 for a zirconium alloy having a tin concentration below 1.0 percent. See
15 Request 3-4.
16 The Board did not misapprehend or overlook any teachings in Sabol.
17 The Board correctly pointed out that a reference is not limited to a preferred
18 embodiment or a specific example but rather must be considered for all that
19 it expressly teaches and fairly suggests to one having ordinary skill in the
20 art. In re Lamberti, 545 F.2d 747, 750, 192 USPQ 278, 280 (CCPA 1976).
21 Sabol expressly states that the disclosed alloys contain “up to 1.5 percent
22 tin” and “the minimum amount [of tin and a third alloying element] present
23 would be that sufficient to give the desired corrosion resistance in the
1 The term “containing” is open-ended. Mars Inc. v. J.J. Heinz Co., 377 F.3d
1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004).
2
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