Appeal 2007-2028
Application 11/058,147
2. PRIOR ART
The Examiner relies on the following references:
Benjamin US 4,517,919 May 21, 1985
Stanislowski US 5,018,482 May 28, 1991
Cowan US 5,207,830 May 4, 1993
Ito US 5,526,771 Jun. 18, 1996
3. OBVIOUSNESS -- CLAIMS 1-6, 14, 17, and 18
Claims 1-6, 14, 17, and 18 stand rejected under 35 U.S.C. § 103 as
obvious in view of Benjamin (Answer 3).
The Examiner cites Benjamin as disclosing “an animal litter
comprising a particulate silica gel material” (Final Rejection 2). The
Examiner states that one of ordinary skill in the art would have considered it
obvious to use a particle size distribution “between 0.15-2 mm . . . in the
litter of Benjamin et al., since it has been held that where routine testing and
general experimental conditions are present, discovering the optimum or
workable value/ranges until the desired effect is achieved involves only
routine skill in the art” (id.). The Examiner also points out that, at column 6,
line 8, Benjamin “appears to teach a value, i.e. 1mm, within the range as
claimed by Appellant” (Answer 4).
“[W]here there is a range disclosed in the prior art, and the claimed
invention falls within that range, there is a presumption of obviousness.”
Iron Grip Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d 1317, 1322, 73
USPQ2d 1225, 1228 (Fed. Cir. 2004). Overlapping ranges also support a
prima facie case of obviousness. See In re Geisler, 116 F.3d 1465, 1469, 43
USPQ2d 1362, 1365 (Fed. Cir. 1997).
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