Appeal No. 2000-0606
Application No. 08/755,435
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. [citations omitted] 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.
See also Gardner v. TEC Sys., Inc., 725 F.2d 1338, 1349, 220
USPQ 777, 786 (Fed. Cir.), cert. denied, 469 U.S. 830 (1984)
(obviousness determination affirmed because dimensional
limitations in claims did not specify a device which performed
and operated differently from the prior art; while the claimed
device produced a different pressure profile, the complex
array of variables which contribute to the pressure profile
were not specified in the claim).
In this instance, appellants have not shown that the
minimum width of the dispensing throat is critical. While it
is apparent from appellants' specification (page 5), as well
as from the language of the claim itself, that the width of
the slot was selected with a view toward preventing more than
a few interfolded napkins from being pulled through the throat
at one time, it would appear to be the relative dimensions of
the slot portion and the napkins (e.g., the ratio of the slot
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