Appeal No. 96-1830
Application 08/101,668
Votel; and3
b) under the judicially created doctrine of obviousness-
type double patenting as being unpatentable over claims 1
through 3 of the Castel patent.4
With regard to the first of these rejections,
anticipation is established only when a single prior art
reference discloses, expressly or under principles of
inherency, each and every element of a claimed invention. RCA
Corp. v. Applied Digital Data Systems, Inc., 730 F.2d 1440,
1444, 221 USPQ 385, 388 (Fed. Cir. 1984).
Votel discloses a back support or brace 10 consisting of
a waistband 11 adapted to be secured about the waist of a
wearer to provide abdominal and lumbosacral support. As shown
3Although the rejection of claims 1 through 5 and 23 as
being anticipated by Votel was made under § 102(a) in the
final rejection (Paper No. 15) and answer (Paper No. 19), it
is apparent given the relevant dates involved that the
rejection instead should have been made under § 102(e). We
have assumed that the examiner intended to make the rejection
under § 102(e) and that the failure to do so was the result of
an inadvertent, and ultimately harmless, oversight.
4In the final rejection, claim 23 also was rejected under
35 U.S.C. § 112, first and second paragraphs. Upon
reconsideration, the examiner has withdrawn these rejections
(see page 3 in the answer).
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