Appeal No. 98-2946
Application 08/291,596
Cir. 1990)(Paper No. 23, page 11). We made a similar holding
concerning the number, location and angle of the V-shaped
cutouts recited in claims 10 and 11 (id., pages 15 and 16).
Appellant argues on pages 15 and 16 of the brief that our
approach with regard to criticality was erroneous as a matter
of law, citing In re Bertin, 324 F.2d 182, 185, 139 USPQ 275,
277 (CCPA 1963). However, Bertin concerned a situation in
which the prior art did not disclose a claimed structural
feature, namely, a helical arrangement of nozzles. By
contrast, in the present case, the prior art (Joyce) discloses
the claimed structural features in question, i.e., a tip cover
having an arcuate extent and V-shaped cutouts; the difference
between the claimed invention and the prior art is, as stated
in In re Woodruff, “some range or other variable within the
claims” (id.). We therefore consider that our findings of
obviousness (non-criticality) with regard to the claimed range
of arcuate extent and details of the V-shaped cutouts were
correct.
Having determined that a prima facie case of obviousness
exists, we now consider, as in our decision (Paper No. 23,
pages 12 to 15), whether the prima facie case is rebutted by
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