The Federal Circuit affirmed the district court’s grant of summary of anticipation.  The claim at issue required a range of amounts for a particular ingredient.  The court held that, when a patent claims a range, that range is anticipated by a prior art reference if the reference discloses a point within the range.  When the prior art discloses its own range, rather than a specific point, then the prior art is only  anticipatory if it describes the claimed range with sufficient specificity such that a reasonable fact finder could conclude that there is no reasonable difference in how the invention operates over the ranges.  Here, the patentee was unable to raise a genuine issue of material fact that the claimed range was critical to the invention, because he did not establish that the properties of the claimed substance would differ if the range of the prior art is substituted for the claimed range. 

Ineos USA LLC v. Berry Plastics Corporation, Case No. 2014-1540 (April 16, 2015); Opinion by: Moore, joined by Dyk and O’Malley; Appealed From: District Court for the Southern District of Texas, Costa, J. Read the full opinion here.

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