Appeal 2007-0906
Application 10/445,238
described or suggested by Clarke (Reply Br. 4-6; Br. 6-7), we note that the
disclosure of Clarke is directed to one of ordinary skill in the art who would
be reasonably expected to have a sufficient level of skill to determine the
workable and/or optimum operating temperature for the curing step
disclosed by Clarke. In this regard, the law of obviousness is replete with
cases in which the difference between the claimed invention and the prior art
is some range or other variable value specified in the claims. These cases
have consistently held that the Appellants must show that the particular
range or value is critical or would not have been ascertainable by exercising
ordinary skill, generally by showing that the claimed parameter value
achieves unexpected results relative to the prior art. In re Woodruff,
919 F.2d 1575, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990); In re Boesch,
617 F.2d 272, 276, 205 USPQ 215, 219 (CCPA 1980). Here, Appellants
have not persuasively argued or demonstrated that the recited temperature
range (claim 1 or claim 4) is critical for achieving any unexpected result
relative to the prior art or would otherwise have been outside the routine
skill level of an ordinarily skilled artisan using routine experimentation.
Concerning this last noted matter, we are cognizant that Appellants
have asserted that the Specification supports a certain level of criticality for
the claimed curing temperature ranges because the claimed “curing
temperature may have the desirable result of causing the thermoplastic layer
to better conform to the shape of a composite surface, and may result in a
coating with a more uniform thickness” (Reply Br. 8; Specification 5 and 6).
We are not persuaded by the asserted and disclosed possibility of a shape
conforming advantage by heating the thermoplastic LCP layer to a curing
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