In Re: Brandt, 886 F.3d 1171

Appellants (Brandt; assignee Firestone) filed U.S. Patent Application No. 13/652,858 claiming a covered roof with a coverboard of polyurethane/polyisocyanurate having density >2.5 and <6 lb/ft3; independent claims 1 and 3 remained.
Examiner rejected claims as obvious under 35 U.S.C. § 103 over Griffin (disclosing a coverboard density of 6–25 lb/ft3) in view of Lynn (disclosing polymeric foam densities of 0.5–10 lb/ft3, preferably 1–5).
Examiner found Griffin’s 6 lb/ft3 lower bound and the claimed “less than 6 lb/ft3” were virtually indistinguishable given manufacturing tolerances and Griffin’s disclosure that fillers can vary density.
The Patent Trial and Appeal Board (Board) affirmed the examiner, finding a prima facie case of obviousness because the ranges abut and are “virtually negligible,” and that appellants failed to rebut with evidence of unexpected results or teaching away.
Appellants appealed, arguing (1) the Board improperly treated abutting but non-overlapping ranges as prima facie obvious and (2) Griffin teaches away from a coverboard density below 6 lb/ft3; the Federal Circuit reviewed factual findings for substantial evidence and legal conclusions de novo.

Issue	Plaintiff's Argument (Brandt)	Defendant's Argument (Board/Examiner)	Held
Whether a prima facie case of obviousness can be founded on a prior-art range that abuts but does not overlap the claimed range (6 vs. <6 lb/ft3).	Abutting, non-overlapping ranges cannot establish prima facie obviousness; Patel requires overlap or explicit teaching that endpoints are approximate.	The ranges are virtually indistinguishable given manufacturing tolerances and Griffin’s disclosure of density variation; a prima facie case may be found where ranges are sufficiently close.	Affirmed: prima facie case proper here; substantial evidence supports finding the difference is negligible.
Whether Griffin teaches away from using a coverboard with density <6 lb/ft3.	Griffin implies coverboard should be denser than insulation (which it discloses as <6), so it discourages coverboards <6 lb/ft3.	Griffin actually suggests denser coverboards protect less-dense insulation but does not criticize or discourage a slightly lower-density coverboard; no evidence of criticality.	Affirmed: no teaching away; appellants offered no evidence showing a meaningful property change at 6.00 vs. 5.99 lb/ft3.

Haynes Int’l, Inc. v. Jessop Steel Co., 8 F.3d 1573 (Fed. Cir. 1993) (minor differences in numeric ranges can support prima facie obviousness)
Titanium Metals Corp. of Am. v. Banner, 778 F.2d 775 (Fed. Cir. 1985) (close ranges may be presumed to have same properties for obviousness)
In re Peterson, 315 F.3d 1325 (Fed. Cir. 2003) (prima facie obviousness where claimed and prior-art ranges are close enough to expect same properties)
Graham v. John Deere Co., 383 U.S. 1 (1966) (framework for obviousness analysis)
In re Oetiker, 977 F.2d 1443 (Fed. Cir. 1992) (prima facie burden-shifting framework in examination)
In re Mouttet, 686 F.3d 1322 (Fed. Cir. 2012) (review standards and role of objective indicia in obviousness)