Appeal No. 1997-3811 Page 8
Application No. 08/357,845
ordinary skill would use when instructed to use a chiral
selector in a countercurrent chromatographic device.”
We disagree. Anticipation under 35 U.S.C. § 102 requires
a prior art reference to disclose, either expressly or under
the principles of inherency, each and every element set forth
in the rejected claims. See RCA Corp. v. Applied Digital Data
Systems, Inc., 730 F.2d 1440, 1044, 221 USPQ 385, 388 (Fed.
Cir.), cert. dismissed sub nom., Hazeltine Corp.v. RCA Corp.,
468 US 1228 (1984). Here, the examiner has not shown where
each of Pirkle ‘440 and Pirkle ‘293 have expressly described
each and every limitation of appealed claim 1. Nor has the
examiner reasonably established, under the principles of
inherency, that each of Pirkle ‘440 and Pirkle ‘293
necessarily describe a process including each and every
limitation of appellants’ process by merely asserting that the
herein claimed process steps are of a standard nature.
Anticipation is a factual determination. See In re Baxter
Travenol Labs., 952 F.2d 388, 390, 21 USPQ2d 1281, 1283 (Fed.
Cir. 1991) (citing In re Bond, 910 F.2d 831, 833, 15 USPQ2d
1566, 1567 (Fed. Cir. 1990). In our view, the examiner has
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