Appeal No. 95-4269
Application 08/123,700
kinetic energy on impact with said strips of structural section”
and of “resisting penetration of said material into said air
channels for increasing ballistic defense of the grating system,”
as recited in claim 24.
On pages 4 and 5 of their brief, appellants cite cases
concerning hindsight, the discovery of a problem and the
necessity for motivation to make changes in the reference device.
However, none of these considerations is relevant to the question
of anticipation under 35 U.S.C. § 102(b). See, e.g., In re Self,
671 F.2d 1344, 1350, 213 USPQ 1, 7 (CCPA 1982). The test for
anticipation is whether
a single prior art reference discloses, expressly or
under principles of inherency, each and every element
of a claimed invention. Kalman v. Kimberly-Clark
Corp., 713 F.2d 760, 772, 218 USPQ 781, 789 (Fed. Cir.
1983) [, cert. denied, 465 U.S. 1026 (1984)].
Furthermore, with an element expressed in terms of a
means plus function, “absent structure [in a prior art
reference] which is capable of performing the
functional limitation of the ‘means,’ [the prior art
reference] does not meet the claim.” In re Mott, 557
F.2d 266, 269, 194 USPQ 305, 307 (CCPA 1977).
[Emphasis added.]
RCA Corp. V. Applied Digital Data Systems, Inc., 730 F.2d 1440,
1444, 221 USPQ 385, 388 (Fed. Cir.), cert. dismissed, 468 U.S.
1228 (1984). Also, as stated in the cited Kalman case at 772,
218 USPQ at 789:
The law of anticipation does not require that the
reference “teach” what the subject patent teaches.
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