Appeal No. 95-3233
Application No. 08/094,477
The law is replete with cases in which the
difference between the claimed invention and the
prior art is some range or other variable within the
claims . . . . These cases have consistently held
that in such a situation, the applicant must show
that the particular range is critical, generally by
showing that the claimed range achieves unexpected
results relative to the prior art range. [Citations
omitted].
Consequently, in the present case, appellants have the burden
of establishing with objective evidence that operating the
Brady process at the claimed Reynolds number produces
unexpected results viz-à-viz a Reynolds number that one
skilled in the art would have used in the Brady process.
While appellants invite comparison of specification Runs
A and D with Runs B and C; Run E with Run F; Run G with Run H;
and Run I with Run J, appellants have not proffered any
objective evidence which provides a meaningful side-by-side
comparison with the closest prior art, i.e., appellants have
not presented a comparison of processes within the scope of
the appealed claims and processes fairly taught by either
Brady or Kondo. In re Johnson, 747 F.2d 1456, 1461, 223 USPQ
1260, 1263-64 (Fed. Cir. 1984). Moreover, we find it
significant that all the runs in appellants' specification
utilize a Reynolds number considerably greater than the
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