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Author Topic: Obviousness Rejection  (Read 1509 times)

TataBox

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Obviousness Rejection
« on: 03-25-11 at 02:11 pm »

Has anyone ever received a 103 based on three references wherein "it would have been obvious to combine two references" and "modify the same" references?  Doesn't sound right.  In this case the only distinction is a range of pressure over the combination of the two references.   The Examiner indicated that it would have been obvious to modify the pressure of the combination to include applicant's range.
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NJ Patent1

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Re: Obviousness Rejection
« Reply #1 on: 07-27-11 at 03:45 pm »

TataBox:  Yes I have.  I assume that ranges do not tough or overlap, otherwise the Examiner would have jumped on that.  Unfortunately, I've come across case law standing for the proposition that the prior art need only point out that a particular variable is "important" and would be optimized as a matter or routine.  Having said that, does the reference in any way suggest that the pressures therein disclosed were not just picked out of the sky?  Also, if a chem reaction is involved, you might be able to argue that lower / higher pressures are in someway counterinuitive.  This need not rise to the level of a full-blown "teaching away".  You only need a plausible argument that the Examiner's assertion doesn't have a basis in the art. 
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