Appeal 2006-3149
Application 09/864,478
with polyurethane foams within the scope of the appealed claims. Titanium
Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985).
Furthermore, it is by now axiomatic that where the difference between
the claimed invention and that disclosed in the prior art is some range or
other variable within the claims, the applicant must show that the particular
range or variable is critical, generally by showing that the claimed range
provides unexpected results relative to the range disclosed by the prior art.
In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir.
1990). We note that while a Declaration of Mr. Michael Norton is of record,
Appellants have not based any argument in their Brief on the Declaration.
Accordingly, any such arguments are necessarily waived. However, we find
it noteworthy that whereas the Declarant states that “[b]ased on my
experience regarding performance requirements for tile, I was surprised to
learn that a carpet tile had been made with a rebond foam cushion” (¶20),
the Declarant never states that any unexpected result is attached to such
carpet tile.
Appellants contend that “the evidence of record indicates that in
constructing a carpet tile, higher densities and mass per unit area levels have
previously been considered necessary” (sentence bridging Br. 5-6).
Appellants further submit that “[o]ne of skill in the tile art would have
thought that too soft a cushion (too low a cushion density) would lead to
issues or problems such as snow plowing, cushion failure, cushion crush,
4
Page: Previous 1 2 3 4 5 6 Next
Last modified: September 9, 2013