Appeal 2006-3235
Reexamination Control No. 90/006,696
1 1275 (Fed. Cir. 2003). A claim is anticipated if each and every limitation of
2 the claim is found in a single prior art reference. Atofina v. Great Lakes
3 Chem. Corp., 441 F.3d 991, 999, 78 USPQ2d 1417, 1423 (Fed. Cir. 2006).
4 Although the examiner previously asserted anticipation by the 100%
5 K24 formulation that is one of the end points of Aszodi’s Figure 1 graph,
6 Final Action 6, the Examiner has abandoned that position because “Aszodi
7 discloses a mixture of K-24 and M-24, and does not disclose using 100% K-
8 24 with sufficient specificity (as argued by the patentee on p. 50 [of the
9 Brief], and the examiner agrees).” Answer 15, last four lines. Page 50 of the
10 Brief cites “Manual of Patent Examining Procedures § 2131.0” [sic], which
11 we assume was intended to be a reference to § 2131.03 because that section
12 quotes Atofina’s holding that “the disclosure of a range is no more a
13 disclosure of the end points of the range than it is of each of the intermediate
14 points.” Atofina, 441 F.3d at 1000, 78 USPQ2d at 1424.
15 Finally, we note that “[t]he discovery of a new property or use of a
16 previously known composition, even when that property and use are
17 unobvious from prior art, can not impart patentability to claims to the known
18 composition.” In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429,
19 1431 (Fed. Cir. 1997) (quoting In re Spada, 911 F.2d 705, 708, 15 USPQ2d
20 1655, 1657 (Fed. Cir. 1990)).
21 C. Analysis
22 For purposes of this analysis, we will focus on whether Claim 11 is
23 anticipated by Aszodi’s specific example of a 40/60 M24/K24 mixture.
24 Comparing Claim 11 to Aszodi, we agree with the Examiner
25 (Answer 10) that the dark regions in the single microphotograph depicted in
26 Figure 5 are the result of detecting hot spots in the LED chip and that Aszodi
43
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