Appeal No. 97-4166
Application No. 08/478,647
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.]
Here, the appellant merely broadly states in line 13 of page 8
of the specification that the "can 50 can only tip between 3E
and 8E," but mentions no reason why such a range is important
vis-à-vis other ranges (for example, the angle depicted in the
"blow-up" of Fig. 7 of Hummer on page 34 of the brief).
Apparently, the range is simply one that is "preferred;"
however, "[m]erely because appellant's specification denotes
those limitations as 'preferred' does not, without more,
establish them as critical," In re Rauch, 390 F.2d 760, 762,
156 USPQ 502, 503 (CCPA 1968). Insofar as the record is
concerned, the angular range through which the beverage
container is allowed to tilt, does "not specify a device which
perform[s] and operate[s] any differently from the prior art,"
Gardner v. TEC Systems, Inc. 725 F.2d 1338, 1349, 220 USPQ
777, 786 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225
9
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