Appeal No. 97-0707
Application No. 08/001,474
The reference relied on by the examiner is:
Jaeckel 5,113,507 May 12, 1992
Claims 1, 5, 6, 8 through 13, 15 through 17, 20, 21 and 23
stand rejected under 35 U.S.C. § 102(e) as being anticipated by 3
Jaeckel.
Reference is made to the brief and the answer for the
respective positions of the appellant and the examiner.
OPINION
We have carefully considered the entire record before us,
and we will sustain the 35 U.S.C. § 102(e) rejection of all of
the claims on appeal, except for claims 9 through 12, 20 and 21.
As indicated infra, new grounds of rejection of claim 11 have
been entered under the provisions of 37 CFR § 1.196(b).
To anticipate a claim, a prior art reference must disclose
every limitation of the claimed invention, either explicitly or
inherently. See Glaxo Inc. v. Novopharm Ltd., 52 F.3d 1043,
1047, 34 USPQ2d 1565, 1567 (Fed. Cir. 1995).
3The correct statutory basis for rejecting the claims is
35 U.S.C. § 102(a) because the invention was patented in this
country by Jaeckel “before the invention thereof by the applicant
for patent.” Inasmuch as appellant has not objected to the
examiner’s erroneous statutory citation, we will treat the
examiner’s mistake as harmless error.
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