Appeal 2006-2592
Application 10/035,535
25-31), and the partial pressure of the chlorine-containing gas is
“preferably” maintained in the range of 0.03 to 1 atm (col. 1, ll. 56-
59) in an amount of from 3-60 vol. % (col. 8, ll. 24-25);1
(3) Ishikawa teaches that “if it [the partial pressure] is more than 1
atm, a pressurized furnace must be used, entailing a problem of
complex furnace structure” (col. 1, ll. 63-65); and
(4) Kingery teaches that the higher the concentration of solute, the
more the solute diffuses into a body (Kingery 225; Answer 3).
Under the proper legal standard, a reference will teach away when it
suggests that the developments flowing from its disclosures are unlikely to
produce the objective of the applicant’s invention. See In re Gurley, 27 F.3d
551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994). “The law is replete with
cases in which the difference between the claimed invention and the prior art
is some range or other variable within the claims. [Citations omitted].
These cases have consistently held that in such a situation, the applicant
must show that the particular range is critical, generally by showing that the
claimed range achieves unexpected results relative to the prior art range.”
In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir.
1990). Under 35 U.S.C. § 103, the factual inquiry into obviousness requires
a determination of: (1) the scope and content of the prior art; (2) the
differences between the claimed subject matter and the prior art; (3) the level
of ordinary skill in the art; and (4) secondary considerations. See Graham v.
John Deere Co. of Kansas City, 383 U.S. 1, 17-18, 148 USPQ 459, 467
1 The Examiner states that 1 atm = 1.013x102 kPa (Answer 3) and
Appellants do not contest this statement. Therefore, for purposes of this
appeal, we accept this as a fact.
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