Result Effective Variable Obviousness. Alternatively the examiner took the position that Sun established the porosity to be a result-effective variable that would have been obvious to optimize to obtain the claimed range. In Ex parte.
Only Result-Effective Variables Can Be Optimized A particular parameter must first be recognized as a result-effective variable ie a variable which achieves a recognized result before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation. In these situations examiners usually take the position that the claimed range would have been obvious to obtain by routine optimization of a result-effective variable ie a variable that achieves a recognized result in the prior art. For result-effective variables in which a relationship between property and effect is at least qualitatively known in the prior art a prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.
For result-effective variables in which a relationship between property and effect is at least qualitatively known in the prior art a prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art.
Only Result-Effective Variables Can Be Optimized A particular parameter must first be recognized as a result-effective variable ie a variable which achieves a recognized result before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation. The Board disagreed with the examiner. One way to rebut the presumption of obviousness based on overlapping ranges is to show that the claimed parameter was not recognized by as being result-effective ie a variable which achieves. When there is no overlap Examiners will bridge the gap by arguing that the parameter of the range is a result effective variable such that it would have been obvious to go beyond the literal range or rely on Titanium Metals to assert that the claimed range is obvious simply because it is close enough to the prior art range.