Appeal No. 98-2156 Page 14
Application No. 08/421,489
Considering first the rejection of claims 3, 4 and 18 as
being unpatentable over Kiley in view of Kimura and Lux, the
appellant argues that it would have been unobvious to form the
box of Kiley, as modified by Kimura, with a cross-linked
polyethylene foam having a density within the claimed ranges
in view of the teachings of Lux. However, even if we were to
agree with the appellant that this is the case, we must point
out that the court in In re Woodruff, 919 F.2d 1575, 1578, 16
USPQ2d 1934, 1936-37 (Fed. Cir. 1990) stated:
Nor can patentability be found in the difference in
. . . ranges recited in the claims. 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 . . . (obviousness
determination affirmed because dimensional
limitations in claims did not specify a device which
performed and operated differently from the prior
art) . . . . [Citations omitted.]
Here, the appellants have made no persuasive showing that the
density ranges of "about 1 lb/ft to about 10 lb/ft " (claims 33 3
and 18) or "about 4 lb/ft to about 6 lb/ft " (claim 4) are in3 3
any way critical or are anything which would be unexpected.
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