Appeal 2007-2906 Application 10/295,315 134a and 8.56 parts by weight of HFC-245fa,25 which translates into weight percentages of 59.98 and 40.02, respectively.26 Intriguingly, the blowing agent of Foam 4 is well outside the scope of claim 6 and almost exactly at the limits of Takeyasu's more preferred range, yet Schilling's graph shows Foam 4 as having a better than predicted k-factor. Thus, although the examiner was wrong about Schilling's fourth example, the error is harmless because the data is more consistent with the examiner's position than with Bayer's. The limited data that Bayer has provided shows better k-factors than Dr. Schilling would have predicted for Takeyasu's more preferred compositions, whether those compositions are within the scope of claim 6 or not. Thus, on this record, improved k-factors cannot be said to distinguish the composition of claim 6 from Takeyasu's more preferred compositions. ANALYSIS The subject matter of claim 6 would have been obvious When the claimed invention falls within a range disclosed in the prior art, there is a presumption of obviousness. The presumption may be rebutted on a showing that (1) the prior art taught away from the claimed invention or (2) there are new and unexpected results relative to the prior art.27 Optimization within the suggested range is obvious unless the results are unexpectedly good. Moreover, the showing of unexpectedly good 25 Schilling 4 (Table 1). 26 12.83/(12.83 + 8.56) and 8.56/(12.83 + 8.56), respectively. 27 Iron Grip Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d 1317, 1322, 73 USPQ2d 1225, 1228 (Fed. Cir. 2004). 7Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
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