Appeal 2007-0616
Application 10/733,689
3) Would Ruegg alone, or in combination with Plavnik, have taught or
suggested employing a pressurized gas which is different from an oxidizing
agent?
4) Would Ruegg alone, or in combination with Plavnik, have suggested the
continuous flow of the purge gas recited in claim 20 or the supplemental
purge gas recited in claim 23?
5) Are claims 13 through 16 of the instant application unpatentable under
the doctrine of obviousness-type double patenting as being patentably
indistinct from claims 5 through 9 of Application 10/718,855?
V. PRINCIPLES OF LAW
Under 35 U.S.C. § 102, anticipation is established only when a single
prior art reference discloses, either expressly or under the principle of
inherency, each and every element of a claimed invention. In re Spada, 911
F.2d 705, 708, 15 USPQ2d 1655, 1657 (Fed. Cir. 1990).
“[T]he term ‘comprises’ permits the inclusion of other steps,
elements, or materials.” In re Baxter, 656 F.2d 679, 686, 210 USPQ 795,
802 (CCPA 1981).
Under 35 U.S.C. § 103, obviousness cannot be established absent
some teaching, suggestion and/or motivation in the applied prior art
references and/or knowledge generally available to a person having ordinary
skill in the art to arrive at the claimed subject matter. Pro-Mold & Tool Co.,
Inc. v. Great lakes Plastics, Inc., 75 F.3d 1568, 1573, 37 USPQ2d 1626,
1629-30 (Fed. Cir. 1996); ACS Hospital Systems, Inc. v. Montefiore
Hospital, 732 F.2d 1572, 1577, 221 USPQ 929, 933 (Fed. Cir. 1984).
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