MPEP Q & A 129: How Applicants Can Rebut a Prima Facie Case of Obviousness Based on Overlapping Ranges?

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Question:

How can applicants rebut a prima facie case of obviousness based on overlapping ranges?

Answer:

Applicants can rebut a prima facie case of obviousness based on overlapping ranges by showing the criticality of the claimed range.

In addition, an applicant can rebut a presumption of obviousness based on a claimed invention that falls within a prior art range by showing “(1) [t]hat the prior art taught away from the claimed invention…or (2) that there are new and unexpected results relative to the prior art.

Chapter Details:

The answer to this question can be found in chapter 2100 of the MPEP. This chapter covers Patentability.

The answer is from the 9th Edition, Revision 07.2015. Depending on future changes to the MPEP, the question and answer may or may not be applicable in later Editions or revisions.

Section Summary:

This question and answer comes from section 2144.05 of the MPEP.  The following is a brief summary of section 2144.05.

2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions

This section covers obviousness of ranges. It includes a discussion on instances where there is an overlap of ranges, an optimization of ranges, and a rebuttal of prima facie case of obviousness.