Appeal No. 2002-0910 Page 7
Application No. 09/229,855
teaching, either expressly or under principles of inherency2, of steps of positioning the
piezoelectric bandage substantially adjacent to a wound and emitting ultrasound toward
the wound and away from the wound to contact and heal the wound, as called for in
claim 8, the examiner’s rejection of claim 8 as being anticipated by Fox cannot be
sustained.
The obviousness rejections
Each of dependent claims 3, 11 and 13, as well as claims 4-7 which depend
from claim 3 and 14-17 which depend from claim 13, requires that the transducer
include a rod-shaped operative surface, which is clearly lacking in Fox. Relying on the
teachings of either Watanabe or Crowley, however, the examiner contends that it would
have been obvious to have modified Fox such that a rod-shaped transducer is used to
cover a wider area for treatment in a single application (answer, page 3). For the
reasons which follow, we do not agree.
Watanabe is directed to an ultrasonic apparatus for health and beauty which
makes use of a roller 7 having ultrasonic vibrations transmitted thereto via a plate-like
vibrator 9 driven by a high-frequency generating unit 4 to “obtain the synergistic effect
2 Under principles of inherency, when a reference is silent about an asserted inherent
characteristic, it must be clear that the missing descriptive matter is necessarily present in the thing
described in the reference, and that it would be so recognized by persons of ordinary skill. Continental
Can Co. v. Monsanto Co., 948 F.2d 1264, 1268, 20 USPQ2d 1746, 1749 (Fed. Cir. 1991). In this case,
we disagree with the examiner that Fox’s use of the term “bandage” conveys that it is necessarily used to
treat a wound. We share appellants’ view (brief, page 7) that Fox uses the term “bandage” to describe its
structure, namely, a strip for adherence to the skin, rather than a function of treating a wound.
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