Ex Parte Langenhove et al - Page 8


               Appeal No. 2006-3202                                                                     Page 8                  
               Application No. 10/323,592                                                                                       

               USPQ 6 (CCPA 1977).  These circumstances are not present here because elevated                                   
               temperature is identified by Casscells’ 261 as the parameter which characterizes the                             
               presence of an inflamed atherosclerotic plaque.  It was recognized by Casscells’ 261 as                          
               a “result-effective variable.”  Accordingly, we conclude that the overlap in the                                 
               temperature range between the prior art and the claimed subject matter is sufficient to                          
               establish prima facie obvious.                                                                                   
                      According to Appellants, “[t]here are general references in Casscells et al to                            
               temperature ranges from 0.2 to 5°C but it is quite clear that the focus in Casscells et al                       
               is on temperatures towards the middle of this range, especially 0.4 to 4°C and in                                
               particular 1.5°C and greater.”  Brief, page 14, ¶ 2.  We do not find this argument                               
               persuasive.  Casscells’ ‘261 disclosure of higher temperature ranges (i.e., “especially                          
               0.4 to 4°C and in particular 1.5°C and greater”) cannot negate, or teach away from, his                          
               express disclosure of lower values that overlap with Appellants’ claimed range.                                  
                      In our view, the facts as discussed above clearly establish prima facie                                   
               obviousness of the claimed subject matter, putting the burden on Appellants to set forth                         
               adequate evidence of secondary considerations.  This burden has not been met.                                    
               Accordingly, the rejection of claim 1 is affirmed.  Because separate arguments for                               
               patentability were not made, claim 2-20, 22-25, 27-29, 34-41, and 43-50 fall together                            
               with claim 1.                                                                                                    











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