Appeal No. 1996-2735
Application 08/322,741
I.
With respect to the examiner’s rejection under 35 U.S.C. § 102 (e), we point out that
it is well established that anticipation requires that each and every element set forth in the
claim be present, either expressly or inherently, in a single prior art reference. In re
Robertson, 169 F.3d 743, 745, 49 USPQ2d 1949, 1950 (Fed. Cir. 1999); Verdegaal
Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631, 2 USPQ2d 1051,1053 (Fed. Cir. 1987);
Lindemann Maschinenfabrik GMGH v. American Hoist and Derrick Co., 730 F.2d 1452,
1458, 221 USPQ 481, 485 (Fed. Cir. 1984). Thus, the examiner has the initial burden of
specifically pointing out where and/or how Tanzer discloses, either explicitly or implicitly,
each of the claimed elements. This the examiner has not done. Contrary to the examiner’s
finding, we agree with the appellant that Tanzer discloses that it is preferable that the odor
controlling particles
“not be immediately contacted by body fluids discharged by the user. The non-buffered
mixture is most effective when dry.” Tanzer, col. 5, lines 60-66. Thus, we find that the
teachings of Tanzer are diametrically opposed to the present invention.
We note that Tanzer discloses that the deodorizing mixture (i) will work when wet
(col. 5, line 66), and (ii) should be positioned in manner which minimizes contact with the
bodily fluid (col. 6, lines 8-12). Thus, we find that Tanzer acknowledges that there may be
times when menstrual fluid and the deodorizing material come in contact. However, even
though such inadvertent contact might result in the precipitation of some of the cations
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