Obviousness of ranges : CAFC Alert

A Non-Overlapping Prior Art Range May Still Render a Claimed Range Obvious

| April 12, 2018

In re Brandt

March 27, 2018

Before Lourie, Reyna and Taranto. Opinion by Reyna.


Brandt’s patent application (U.S. Application No. 13/652,858) is to high density polyurethane or polyisocyanurate construction boards. The claims recite a coverboard having a density greater than 2.5 and less than 6 lbs/ft3. In rejecting the claims, the Examiner cited Griffin (US 2006/0096205), which discloses a coverboard having a density of “between 6 lbs/ft3 and 25 lbs/ft3 and preferably a density of at least 8 lbs/ft3” and stated that the claimed range would have been an obvious design choice. The Patent Trial and Appeal Board (“PTAB”) agreed with the Examiner stating that even though the prior art range does not overlap the claimed range, the difference in the ranges was “virtually negligible.” The CAFC agreed that the ranges are “so mathematically close that the examiner properly rejected the claims as prima facie obvious and affirmed the PTAB’s rejection of the claims.

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