Appeal No. 95-5000 Page 9
Application No. 08/021,883
recirculated in the system, that is, a majority of the sewage
that flows down the downcomer and then up the riser is
recirculated back down the downcomer. Thus, since Bailey is
silent as to the below ground/above ground volume ratio, it is
our view the recited ratio is a matter of design choice
lacking any criticality since it solves no stated problem. As
stated in In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934,
1936 (Fed. Cir. 1990)
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. [citations
omitted]. 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.
We find the appellant's further argument (brief, pp. 7-
12) that Bailey teaches away from the appellant's invention
unpersuasive since it is not commensurate in scope with the
claimed invention. In that regard, neither claim 1 or 27
recite (a) any limit on the depth to which the downflow
channel and return channel can extend below the bottom of the
body of water, (b) any limit on the pressure resulting from
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