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Non-obviousness for range

Started by las1226, 08-02-21 at 03:01 PM

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The claimed producing method contains a X (reactant) concentration of 40-50 wt% and a heating temperature of 100-150°C. In the specification, an example of the claimed method brings a Y (product) yield of 90%.

A prior art discloses a similar producing method, but the X concentration is 10-70 wt% and a heating temperature is 70-200°C. Additionally, according to the disclosure, when the X concentration is 10 wt%, and the heating temperature is 70°C, the Y yield is 80%; when the X concentration is 70 wt%, and the heating temperature is 200°C, the Y yield is 50%.

Could I states the yield of the claimed method is higher than that of the prior art to overcome the obviousness rejection?

MPEP told me to show the difference in kind, not merely in degree.
The yield difference is difference in kind or in degree?

If I want to overcome this rejection, could any advice be given to me?

Best Regards


Possibly try looking up arguments and cases related to optimization, and try to show that yours is not merely "routine optimization"?  It's not something I've ever had to argue so I don't know what the arguments are.  The few cases I've just looked up don't seem encouraging, though.

This one was from the other direction, requiring an examiner to do more than just state it, but it may give you a direction to look into:
"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

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