Appeal No. 95-2440 Application 07/705,726 examiner has not made any findings of fact as to whether the terms in question are described by the original disclosure as indicated supra. Absent such a determination, the examiner could not have taken into account the application disclosure in assessing the definiteness of the terms in question. Upon return of this application, the examiner is to reconsider the entire merits of this rejection, taking into account descriptive support in the original disclosure, as well as prior art teachings. PRIOR ART REJECTION UNDER § 102 Anticipation under Section 102 is a factual determination. 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). Anticipation requires prior art to describe, either expressly or under the principles of inherency, each and every element set forth in the claims. See, e.g., RCA Corp. v. Applied Digital Data Sys., Inc., 730 F.2d 1440, 1444, 221 USPQ 385, 388 (Fed. Cir. 1984). The term "prior art" includes an appellants' admission of prior art in a patent application. 16Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 NextLast modified: November 3, 2007