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In re Brandt

No Bar to Finding Prima Facie Obviousness Where Reference’s Disclosed Range Does Not Overlap With Claims

In re Brandt, 2018 WL 1473869 (Fed. Cir. Mar. 27, 2018) (Lourie, REYNA, Taranto) (PTAB) (2 of 5 stars)

Fed Cir affirms the Board’s obviousness rejection. The opinion rejects Mr. Brandt’s argument that the PTAB improperly applied a per se rule in finding prima facie obviousness. The reference at issue disclosed a range very close to the range claimed by Mr. Brandt. Instead, the Board properly found obviousness based on the record before it, and the opinion notes that Mr. Brandt had conceded that the difference between the two ranges was not meaningful. To the extent Mr. Brandt urges that a prima facie obviousness case may emerge only if there is overlap between two ranges, that is not the law. The Board also did not err in concluding that the prior art did not teach away from the claimed invention, and the opinion discusses how the record does not show anything particularly critical about the reference’s disclosed range.

KEYWORDS: INITIAL PROSECUTION; OBVIOUSNESS (YES); PRIMA FACIE