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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