Appeal No. 2000-1474 Page 21
Application No. 08/962,902
[t]he 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 [citations
omitted].
In the present case, however, the appellant has not
established, that the claimed dimensions produce unexpected
results. In that regard, we note that there is no evidence
that the scooter shown in the appellant's video tape has
dimensions within the scope of claim 32. Moreover, we agree
with the examiner's rationale (answer, pp. 17-18) as to why
the appellant's video tape fails to establish unexpected
results.
For the reasons set forth above, the decision of the
examiner to reject claim 32 under 35 U.S.C. § 103 is affirmed.
Claims 9-12
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