Appeal 2006-3386
Application 10/448,569
of time, and after the first mixture has been delivered, a second gaseous mixture,
specifically chosen to kill the rodents, is delivered for a second period of time.
Chu does not disclose delivering a first substantially odorless gaseous
mixture that has been specifically chosen to render the gophers unconscious, as
required by claims 3 and 4. Rather, Chu teaches applying the cold and hot air at
lethal temperatures for a long enough period of time to exterminate the organisms
(Findings of Fact 1-3). In particular, Chu discloses using a vortex tube to apply
cold and hot air in sequence at the same infestation area for a long enough period
to exterminate organisms at the infestation area (Finding of Fact 4). The Examiner
asserts that hot air will render a gopher unconscious and cold air will then kill the
gopher (Answer 4). We disagree. Chu clearly teaches applying hot air and cold air
at lethal temperatures to kill the gopher, not simply render it unconscious (Finding
of Fact 3). Further, it is not inherent from Chu that applying the hot air would
necessarily result in the gopher becoming unconscious. The mere fact that a
certain thing may result from a given set of circumstances is not sufficient to show
anticipation by inherency. As such, we find that Chu does not anticipate the
invention of claims 3 and 4.
CONCLUSIONS OF LAW
We conclude that the Examiner erred in rejecting claims 3 and 4 under 35
U.S.C. § 102(b) as anticipated by Chu.
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