Appeal No. 98-2325
Application No. 08/546,116
With regard to claim 7, the examiner concedes that the
applied references do not disclose the claimed dimensions of
the liner. However, it is well settled that where
patentability is predicated upon some range or other variable,
such as numerical values in the present case, the applicant
must show that such variables are critical by establishing
that the claimed values achieve unexpected results. See In re
Haung, 100 F.3d 135, 139, 40 USPQ2d 1685, 1688 (Fed. Cir.
1996), In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934,
1936-1937 (Fed. Cir. 1990) and In re Aller, 220 F.2d 454, 456,
105 USPQ 233, 235 (CCPA 1955).
In the present case, appellants have not demonstrated
that the numerical values recited in claim 7 produce
unexpected results or are critical in any other sense.
Accordingly, we will sustain the § 103 rejection of claim 7.
With regard to claim 6, Williams teaches a polyester
polyurethane liner, not a polyether polyurethane liner.
Polyether polyurethane is to be distinguished from polyester
polyurethane. Accordingly, we must reverse the § 103 rejection
of claim 6.
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