       NOTE: This disposition is nonprecedential.



  United States Court of Appeals
      for the Federal Circuit
                ______________________

    IN RE RAJEN M. PATEL, GERT CLAASEN,
  WENBIN LIANG, KARIN KATZER, KENNETH B.
        STEWART, THOMAS ALLGEUER,
              AND JESUS NIETO
             ______________________

                      2013-1301
                ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Serial No.
11/578,646.
                 ______________________

                Decided: July 16, 2014
                ______________________

    JAMES T. HOPPE, The Dow Chemical Company, Intel-
lectual Property Law, of Freeport, Texas, argued for
appellants. With him on the brief was RAY ASHBURG.

    COKE MORGAN STEWART, Associate Solicitor, Office of
the Solicitor, United States Patent and Trademark Office,
of Alexandria, Virginia, argued for appellee. With her on
the brief were NATHAN K. KELLEY, Solicitor, and JAMIE L.
SIMPSON, Associate Solicitor.
                  ______________________
2                                              IN RE PATEL




        Before O’MALLEY and HUGHES, Circuit Judges. *
O’MALLEY, Circuit Judge.
     Applicants appeal from a Patent Trial and Appeal
Board (“PTAB”) decision affirming the patent examiner’s
rejection of claims 1–8, 30–38, 40–46, 49, and 50 of Patent
Application No. 11/578,646 as obvious under 35 U.S.C.
§ 103. Because the PTAB erred in finding that the exam-
iner established a prima facie case of obviousness for
independent claims 1 and 36, we vacate-in-part and
remand the PTAB’s decision regarding those claims and
their dependent claims 2–8, 30–35, 38, 40–43, 45, 46, 49,
and 50. We also affirm-in-part the PTAB’s decision
affirming the examiner’s obviousness rejection for claims
37 and 44.
                        BACKGROUND
    On October 13, 2006, Appellants filed Patent Applica-
tion No. 11/578,646 relating to nonwoven material com-
prised of monocomponent fibers, bicomponent fibers, or
mixtures thereof. The claims at issue are directed to a
nonwoven fabric made from the combination of two differ-
ent components.
    Representative independent claim 1 1 states:
    1. A nonwoven material comprised of fibers hav-
    ing a surface comprising a polyethylene blend,
    said fibers being selected from the group consist-


    *   Randall R. Rader, who retired from the position of
Circuit Judge on June 30, 2014, did not participate in this
decision.
    1   Independent claim 37 contains very similar limi-
tations except that it requires the first polymer to com-
prise 10 to 80 weight percent and a density from 0.921 to
0.950 g/cm3. J.A. 94.
IN RE PATEL                                              3



   ing of monocomponent fibers, bicomponent fibers
   or mixtures thereof, said nonwoven material hav-
   ing a fuzz/abrasion less than or equal to
   0.0214(BW) + 0.2714 mg/cm2 when the material
   comprises monocomponent fibers and said nonwo-
   ven material having a fuzz/abrasion less than or
   equal to 0.0071(BW) + 0.4071 mg/cm2 when the
   material consists of bicomponent fibers, wherein
   the fibers are from 0.1 to 50 denier and wherein
   the polymer blend comprises:
   a. from 26 weight percent to 80 weight percent (by
   weight of the polymer blend) of a first polymer
   which is a homogeneous ethylene/α-olefin inter-
   polymer having:
       i. a melt index of from about 1 to about
       1000 grams/10 minutes, and
       ii. a density of from 0.915 to 0.950
       grams/centimeter3, and
   b. from 74 to 20 percent by weight of a second pol-
   ymer which is an ethylene homopolymer or an
   ethylene/α-olefin interpolymer having:
       i. a melt index of from about 1 to about
       1000 grams/10 minutes, and
       ii. a density which is at least 0.01
       grams/centimeter3 greater than the densi-
       ty of the first polymer
   wherein the overall melt index of the polymer
   blend is greater than 18 grams/10 min.
J.A. 66 (emphases added). The only limitations at issue
on appeal are the weight percentage and the density
range of the first polymer emphasized above.
    On March 19, 2010, the examiner issued a Final Of-
fice Action rejecting claims 1–8, 30–38, 40–46, and 50
4                                              IN RE PATEL




under 35 U.S.C. § 103(a) over U.S. Patent No. 6,015,617
(“Maugans”) and claim 49 under 35 U.S.C. § 103(a) over
Maugans in view of U.S. Publication No. 2003/0003830 Al
(“Ouederni”). 2 In rejecting the claims, the examiner found
that the density ranges disclosed in Maugans overlapped
with the claimed range, and that the “Applicant has also
not shown unexpected results between a density of .920
and .921 (as set forth in claim 37).” Joint Appendix
(“J.A.”) 85. The rejection also incorporated previous
arguments from a July 22, 2009 Office Action, which
found several of Appellants’ arguments unpersuasive,
including Appellants’ assertion that their comparative
data evidences improved abrasion results when using a
higher density of 0.915 g/cm3. Addressing the weight
percentage issue, independent claims 1 and 36 listed a
range of 26 to 80 weight percent of the first polymer.
While Maugans discloses a range of 0.5 to 25 weight
percent, the examiner “maintain[ed] that a patently
distinguishable difference between 25 and 26 weight
percent does not exist. As such, it is the position of the
Examiner that . . . it would be obvious to one having
ordinary skill in the art to vary the amount of the first
and second polymer in the blend to achieve a desirable
balance of properties.” J.A. 85. Appellants appealed the
rejection to the PTAB.
    On September 28, 2012, the PTAB filed its Decision
on Appeal affirming the examiner’s § 103 rejections of
claims 1–8, 30–38, 40–46, 49, and 50. 3 J.A. 4. The PTAB


    2  The examiner also indicated that claims 39, 47,
and 48 would be allowable if rewritten in independent
form.
    3  The PTAB explained that Appellants did not ar-
gue the dependent claims separately, so it addressed only
independent claims 1, 36, and 37. Independent claim 1 is
representative of the independent claims.
IN RE PATEL                                              5



agreed with the examiner that Maugans discloses the first
polymer with “a density anywhere from 0.850 to 0.950
g/cm3.” J.A. 4–5. The PTAB also found that “Appellants
have not adequately explained why the alleged improve-
ment shown therein is considered significant and unex-
pected relative to the closest prior art, Maugans.” J.A. 6.
Specifically, the PTAB explained that Appellants failed to
show: (1) “why the evidence relied upon is reasonably
commensurate in the scope with the claims” and (2) “why
this limited evidence is representative of the scope of
protection sought by the claimed invention covering
various compositions having densities outside of that
specified in the Example.” J.A. 6. Regarding weight
percentage, the PTAB affirmed the examiner’s prima facie
case of obviousness stating that “[s]ince 25 wt. % and 26
wt. % are so close in value, a person of ordinary skill in
the art would have reasonably expected a blend compris-
ing either 25 wt. % or 26 wt. % of the homogeneously
branched component to have the same or similar proper-
ties.” J.A. 6.
    On November 27, 2012, Appellants filed a Request for
Rehearing. On December 24, 2012, the PTAB filed its
Decision on Request for Rehearing declining to change its
decision affirming the examiner’s § 103 rejections.
    Appellants timely appealed. This court has jurisdic-
tion under 28 U.S.C. § 1295(a)(4)(A).
                       DISCUSSION
    Whether an invention is obvious under 35 U.S.C.
§ 103 is a legal conclusion based on underlying findings of
fact. In re Dembiczak, 175 F.3d 994, 998 (Fed. Cir. 1999).
We review the ultimate determination of obviousness de
novo, and the PTAB’s underlying factual findings for
substantial evidence. In re Peterson, 315 F.3d 1325, 1328
(Fed. Cir. 2003).
6                                              IN RE PATEL




     During prosecution, the United States Patent and
Trademark Office (“PTO”) bears the initial burden of
establishing a prima facie case of obviousness. In re
Kumar, 418 F.3d 1361, 1366 (Fed. Cir. 2005) (citing In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). If the PTO
fails to meet this burden, the applicant is entitled to a
patent. In re Glaug, 283 F.3d 1335, 1338 (Fed. Cir. 2002).
If the examiner produces sufficient evidence to support a
prima facie case, however, the burden shifts to the appli-
cant to produce evidence or argument in rebuttal. In re
Kumar, 418 F.3d at 1366 (citing In re Piasecki, 745 F.2d
1468, 1475 (Fed. Cir. 1984)). When rebuttal evidence or
argument is provided, obviousness is then determined on
the entirety of the evidence. In re Kumar, 418 F.3d at
1366 (citing Oetiker, 977 F.2d at 1445).
                  A. Weight Percentage
    Appellants argue that the PTAB erred in sustaining
the examiner’s rejection for claims 1–8, 30–36, and 42 4
because the examiner failed to establish a prima facie
case of obviousness with respect to the weight percent
amount of the first polymer. Specifically, they assert
that, although the claims require a blend comprising from
26 to 80 weight percent of the blend of a first polymer,
Maugans only discloses a first polymer with a blend from
0.5 to 25 weight percent. Appellants allege that, because
the prior art reference “recites a range which does not
overlap, nor abuts with the claimed range,” it is not


    4   Appellants do not argue that the examiner failed
to present a prima face case of obviousness regarding
weight percentage for claims 37, 38, 40, 41, 43–46, 49, and
50. See Appellants’ Br. 13. Unlike independent claim 1,
independent claim 37 requires 10 to 80 weight percent of
the first polymer, which overlaps with the 0.5 to 25
weight percent disclosed in Maugans. Compare J.A. 94,
with J.A. 182.
IN RE PATEL                                               7



proper support for a prima facie showing of obviousness
with respect to that range. Appellants’ Br. 8. Appellee
responds that the examiner correctly rejected the claims,
as one of ordinary skill in the art would have found the
weight percent obvious because the end points of the
ranges are so close to each other.
    The key issue is whether the Maugans reference, dis-
closing a range of 0.5 to 25 weight percent, can establish a
prima facie case of obviousness over the claimed range of
26 to 80 weight percent of the first polymer. We agree
with Appellants that the examiner failed to establish a
prima facie case of obviousness because the ranges do not
overlap and the prior art does not teach that a broader
range would be appropriate.
    In rejecting the claimed weight percent as prima facie
obvious, the PTAB stated that, “[s]ince 25 wt. % and 26
wt. % are so close in value, a person of ordinary skill in
the art would have reasonably expected a blend compris-
ing either 25 wt. % or 26 wt. % of the homogeneously
branched component to have the same or similar proper-
ties.” J.A. 6. In support of this proposition, the PTAB
relied on three cases: (1) In re Woodruff, 919 F.2d 1575
(Fed. Cir. 1990), (2) Titanium Metals Corp. of America v.
Banner, 778 F.2d 775 (Fed. Cir. 1985), and (3) In re Peter-
son, 315 F.3d 1325 (Fed. Cir. 2003). See J.A. 6–7. Each of
these cases is distinguishable from the circumstances
here. In In re Woodruff, this court affirmed an obvious-
ness rejection by the Board of Patent Appeals and Inter-
ferences (“BPAI”) for a process for inhibiting the growth of
fungi. 919 F.2d at 1575. The process discussed maintain-
ing a modified gaseous atmosphere at specific percentages
by volume. Id. at 1575–76. While the majority of the
ranges were clearly found in the prior art, the prior art
reference disclosed “about 1-5%” carbon monoxide where-
as the claim limitation required “>5-25%” carbon monox-
ide. Id. at 1576. The court found that the prior art range
and the claimed range overlapped because the statement
8                                               IN RE PATEL




“about 1-5% does allow for concentrations slightly above
5%,” which established a prima facie case of obviousness.
Id. at 1577 (emphasis added). Consequently, the court in
In re Woodruff only addressed a prima facie case of obvi-
ousness for ranges that overlap. In re Woodruff says
nothing about a situation where no overlap in ranges
exists.
     In Titanium Metals, claim 3 disclosed an alloy having
0.3% Molybdenum (“Mo”) and 0.8% Nickel (“Ni”). The
court found that claim obvious over prior art which dis-
closed two alloys having the following characteristics: (1)
0.25% Mo with 0.75% Ni, and (2) 0.31% Mo with 0.94%
Ni. Titanium Metals, 778 F.2d at 782–83. While it is true
that, in finding the claim obvious, the court stated that
“[t]he proportions are so close that prima facie one skilled
in the art would have expected them to have the same
properties,” id. at 783, the facts of the case put that
comment in context. The claims and prior art in Titani-
um Metals disclosed single points, not ranges, and the
claimed amount fell within the two single amounts dis-
closed by the prior art. In other words, the prior art
establishes two measures—which were themselves not far
apart—and the claim simply adopted a measure between
those end points. Titanium Metals is thus a case much
like the range cases where the claimed amount falls
directly within the established prior art range. Here,
unlike in Titanium Metals, the claimed range unques-
tionably falls outside the range disclosed by the prior art.
    In In re Peterson, the Court affirmed the finding of
obviousness regarding the composition of a nickel-based
single-crystal superalloy. 315 F.3d at 1327. The prior art
disclosed ranges that either fully or at least partially
overlapped with the claimed ranges. It is well-established
that a prima facie case of obviousness exists when the
claimed and prior art ranges overlap. See id. at 1329.
While the court in In re Peterson cited the proposition
from Titanium Metals that “a prima facie case of obvious-
IN RE PATEL                                               9



ness exists when the claimed range and the prior art
range do not overlap but are close enough such that one
skilled in the art would have expected them to have the
same properties,” id. at 1329 (citing Titanium Metals, 778
F.2d at 783) (emphasis omitted), that statement was
dicta; all of the ranges in In re Peterson overlapped at
least to some degree.
     While a rejection based on ranges approaching each
other might well be appropriate where there is a teaching
in the prior art that the end points of the prior art range
are approximate, or can be flexibly applied, the PTAB
cites to no such evidence. And, Appellees are not able to
cite to any evidence of such a teaching before us. Indeed,
if anything, Maugans emphasizes limiting the amount of
the first polymer, as increasing such amount negatively
affects the spinnability and fabric strength. See Maugans
at col. 12 ll. 47–58 (“fabrics prepared from fibers of the
invention will exhibit a fabric strength which is at least 5
percent, more preferably at least 10 percent, and most
preferably at least 20 percent of fabric prepared from fiber
prepared form unmodified second polymer” and “fibers of
the invention will exhibit a spinnability (maximum draw
rpms) which is no more than 25 percent less than, more
preferably no more than 15 percent less than the spinna-
bility (maximum draw rpms) of fiber prepared from
unmodified second polymer.”).
    Depending on the technology, even small differences
in formulations can be meaningful. Where differences
clearly exist and there is no evidence that they are either
not meaningful or one of skill in the art would know to
discard the limits set by the prior art, proximity alone is
not enough to establish a prima facie case of obviousness.
    We find that the PTAB erred in finding that the ex-
aminer established a prima facie case of obviousness
solely because the claimed range and the prior art range
approach one another. Consequently, we need not ad-
10                                              IN RE PATEL




dress whether the Maugans reference affirmatively
teaches away from the claimed invention.
                        B. Density
    Appellants concede that the examiner established a
prima facie case of obviousness regarding density as the
claimed range of 0.915–0.950 g/cm3 falls within the prior
art range of 0.855–0.950 g/cm3. 5 Appellants’ Br. 19. As
a result, the primary point of contention is whether
Appellants provided sufficient evidence of unexpected
results to support a finding of non-obviousness over the
prior art. We find that substantial evidence supports the
PTAB’s finding that Appellants failed to satisfy their
burden to show unexpected results for the claimed range.
     Whether an invention has produced unexpected re-
sults is a question of fact reviewed for substantial evi-
dence. In re Peterson, 315 F.3d at 1328. “When an
applicant seeks to overcome a prima facie case of obvious-
ness by showing improved performance in a range that is
within or overlaps with a range disclosed in the prior art,
the applicant must ‘show that the [claimed] range is
critical, generally by showing that the claimed range
achieves unexpected results relative to the prior art
range.” In re Geisler, 116 F.3d 1465, 1469–70 (Fed. Cir.
1997) (quoting In re Woodruff, 919 F.2d at 1578). Evi-
dence of unexpected results must be commensurate with
the scope of the rejected claims. See In re Peterson, 315
F.3d at 1329 (“the applicant’s showing must be commen-
surate in scope with the claimed range”); In re Clemens,
622 F.2d 1029, 1035 (CCPA 1980) (“In order to establish
unexpected results for a claimed invention, objective
evidence of non-obviousness must be commensurate in



     5  Independent claim 37 requires a density of 0.921
to 0.950 g/cm3, which also falls within the prior art range.
See J.A. 94.
IN RE PATEL                                               11



scope with the claims which the evidence is offered to
support.”).
     In support of its assertions of unexpected results, Ap-
pellants point to Examples 11 and 17 in the application.
Example 17 uses Resin C, which has a density of 0.913
g/cm3. Example 11 uses Resin E, which has a density of
0.915 g/cm3. Example 17 also differs from Example 11 in
that it contains 5 percent more of the first polymer.
Appellants address this difference by stating that “[the
first polymer] component would be expected to benefit
abrasion performance . . . , so all things being equal, the
additional 5% of the homogeneously branched component
should improve abrasion performance.” Appellants’ Br.
20. They then allege that, “[d]espite this disadvantage,
Example 11 shows a 0.076 mg (>15%) improvement in the
Abrasion performance over Comparative Example 17.”
Appellants’ Br. 20.
    Despite these explanations, the PTAB found that
“Appellants have not adequately explained why the
alleged improvement shown therein is considered signifi-
cant and unexpected relative to the closest prior art,
Maugans.” J.A. 6. We agree, and find that Appellants’
reliance on the 15 percent improvement in the abrasion
performance does not reach the level of unexpected re-
sults to overcome the finding of obviousness, even with
the alleged disadvantage. See In re Geisler, 116 F.3d at
1470–71 (finding a 26 percent improvement in wear
resistance insufficient to constitute proof of “substantially
improved results”); In re Soni, 54 F.3d 746, 751 (Fed. Cir.
1995) (finding “substantially improved results” to over-
come obviousness when the 50-fold improvement in
tensile strength was much greater than would have been
predicted).     Furthermore, whether an applicant has
shown unexpected results is a question of fact on which
we defer to the PTAB. Therefore, we conclude that sub-
stantial evidence supports the PTAB’s finding that Appel-
lants failed to show unexpected results.
12                                             IN RE PATEL




    Even if the single point of 0.915 g/cm3 exhibited unex-
pected results, Appellants did not disclose sufficient
evidence of unexpected results over the entire claimed
range. See In re Peterson, 315 F.3d at 1330; In re Geisler,
116 F.3d at 1469–70. As such, Appellants cannot rely on
a single point within a large range to prove unexpected
results for the entire range. 6 Based on the differences
between the examples for 0.913 and 0.915 g/cm3, Appel-
lants assert that higher densities “would be expected to
lead to an even more pronounced advantage with regards
to abrasion resistance properties.” Appellants’ Br. 20
(emphasis added). While Appellants allege that the
advantages at the higher densities would be expected to be
more pronounced, Appellants did not establish unex-
pected results through factual evidence for the entire
claimed range. See In re Geisler, 116 F.3d at 1470 (requir-
ing unexpected results for the claimed range to be estab-
lished by factual evidence).        Appellants’ conclusory
statement is insufficient without further supporting
factual evidence.
    Finally, Appellants assert that they did not need to
show unexpected results for the entire range. We disa-
gree. Appellants do not seek to claim only a single point
that happens to fall in a prior art range; they claim a
range. This court has stated that, for an applicant to
overcome a prima facie case of obviousness through
unexpected results in a range that overlaps with a range
disclosed in the prior art, the applicant must “show that
the [claimed] range is critical, generally by showing that
the claimed range achieves unexpected results relative to
the prior art range.” In re Woodruff, 919 F.2d at 1578; see



     6  Appellants did not provide even a single point ex-
hibiting unexpected results for the range listed in inde-
pendent claim 37, which requires a density of 0.921 to
0.950 g/cm3. See J.A. 94.
IN RE PATEL                                            13



also In re Geisler, 116 F.3d at 1469–70. In a prima facie
case of obviousness, the burden shifts to the applicant to
overcome the examiner’s initial rejection. See In re Ku-
mar, 418 F.3d at 1366. If Appellants want to claim a
range, they need to show unexpected results for the entire
claimed range, here of 0.915 g/cm3 to 0.950 g/cm3, to
overcome the prima facie case of obviousness established
by the examiner. Therefore, substantial evidence sup-
ports the PTAB’s finding that Appellants failed to provide
sufficient evidence of unexpected results to overcome the
obviousness rejection.
                      CONCLUSION
    For the abovementioned reasons, we affirm-in-part
the PTAB’s decision affirming the examiner’s obviousness
rejection for claims 37 and 44. We also find that, in the
absence of a prima facie case of obviousness regarding the
weight percent amount, the PTAB erred in affirming the
examiner’s rejection under 35 U.S.C. § 103 for independ-
ent claims 1 and 36. Consequently, we vacate-in-part the
PTAB’s decision for claims 1–8, 30–36, 38, 40–43, 45, 46,
49, and 50, and remand for further proceedings.
  AFFIRMED-IN-PART, VACATED-IN-PART, AND
                REMANDED
