Appeal 2007-0280
Application 10/469,392
certain matter is prior art to him is an admission that that matter is prior art
for all purposes, including § 102. See In re Hellsund, 474 F.2d 1307, 1311,
177 USPQ 170, 173 (CCPA 1973). Disclosure in the prior art of any value
within the claimed range is anticipation of the claimed range. See In re
Wertheim, 541 F.2d 257, 267, 191 USPQ 90, 100 (CCPA 1976). A proper
rejection under § 102 cannot be overcome by showing new and unexpected
results within a critical range, since this factor is only relevant to an
obviousness rejection. See In re Malagari, 499 F.2d 1297, 1302-03, 182
USPQ 549, 553 (CCPA 1974).
Applying the preceding legal principles to the factual findings in this
record, we determine that the Examiner has established a prima facie case of
anticipation. Claim 14 on appeal places no limit on the amount of N2O in
the gas mixture of the method, thus reading on infinitesimal amounts (such
as parts per million or billion). Appellants admit that many processes such
as “combustion processes or the industrial production of nitric acid” result in
an offgas including NOx and N2O (Specification 1: 10-13). Both Audeh and
Swaroop disclose treatment of an offgas from the same sources as taught by
Appellants (see findings 2, 3 and 5 above). Furthermore, Audeh teaches in
general the treatment of “nitrogen oxides” or “noxious nitrogen
compounds,” thus implicitly including N2O (abstract; col. 1, ll. 15-16; and
col. 2, ll. 11-14). Additionally, Audeh calculates the conversion of all
noxious nitrogen in the feed to form innocuous nitrogen gas (N2) (col. 9, ll.
44-52, and the heading for each Table in the Examples). Accordingly, we
determine that there is a reasonable belief that the exhaust gases used as
feeds in the processes of Audeh and Swaroop necessarily possess some
amount of N2O.
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