Appeal No. 2007-0294 Page 10
Application No. 11/050,224
We concur with the Examiner that the claimed subject matter would have
been obvious to the skilled worker at the time the invention was made. Brockett
teaches that the flocculating agent can be “up to 10% by weight, based on the
weight of the clay.” Brockett at 30, ll. 14-16. With a composition having about
10% by weight of clay (id. at 6, l. 30 to 7, l. 1), this would mean about 1% by
weight of a polycarboxylate, which falls within the claimed range of “from about
0.1wt% to about 5wt%.” When there is a range disclosed in the prior art, and the
claimed invention overlaps or falls within that range, there is a presumption of
obviousness. In re Peterson, 315 F.3d 1325, 1329, 65 USPQ2d 1379, 1382 (Fed.
Cir. 2003); Iron Grip Barbell Co. v. USA Sports, 392 F.3d 1317, 1322, 73 USPQ2d
1225, 1228 (Fed. Cir. 2004). For the foregoing reason, we affirm the rejection of
claim 11.
Claims 17, 24, and 25
Claims 17, 24, and 25, which are dependent on claim 1, further define the
PDMS to have a specific viscosity (claims 17 and 24) and average primary droplet
size (claim 25). The Examiner states that the claims “are drawn to the physical
characteristics of a starting material which is no longer present in that form in the
claimed final product.” Answer 6. Appellants argue that Brockett does not
disclose or suggest a detergent composition comprising pre-emulsified PDMS
having the claimed properties. Br. 9-10; Reply Br. 6-7. They assert that “one of
ordinary skill in the art will recognize that the viscosity of a particular ingredient to
the claimed detergent composition will provide an effect and contribute to the
physical properties of the composition.” Reply Br. 7.
As previously discussed, we find that the Examiner reasonably presumed
that pre-emulsified PDMS is not present in the claimed final product. Appellants
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