Appeal No. 1997-4234
Application No. 08/423,211
flow through and over the indicating medium.
Anticipation requires the disclosure, in a single prior art reference, of each
element of the claim under consideration. W.L. Gore & Assoc. v. Garlock, Inc., 721
F.2d 1540, 1554, 220 USPQ 303, 313 (Fed. Cir. 1983), cert. denied, 469 U.S. 851
(1984). In our opinion, the test chamber described by Condit is anticipatory of the test
kit of claim 30. To the extent that appellants argue that the test apparatus of Conduit et
al. is a more complicated and expensive structure (Brief, page 15), we note that claim
30 is directed to a test kit "comprising" those elements listed and therefore, as pointed
out by the examiner (Answer, page 10), "the instant claim language is open and does
not exclude additional structure taught by Condit et al."
When all of the evidence and argument are considered anew, we find, on
balance, that the evidence and arguments presented by the appellants, taken as a
whole, fail to outweigh the evidence of anticipation provided by the examiner.
Therefore, Condit is sufficient to establish a prima facie case of unpatentability as to the
subject matter of claim 30 which has not been overcome by appellants arguments and
evidence. We, therefore, affirm the rejection of claim 30 under 35 U.S.C. § 102(e).
New Ground of Rejection
Under the provisions of 37 CFR § 1.196(b) we enter the following new ground of
6
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007