Appeal No. 94-3359
Application 07/941,566
described. In re Malagari, 499 F.2d 1297, 1302, 182 USPQ 549,
553 (CCPA 1974); In re Moore, 444 F.2d 572, 579, 170 USPQ 260,
267 (CCPA 1971); In re Hafner, 410 F.2d 1403, 1405, 161 USPQ 783,
785 (CCPA 1969); In re Hack, 245 F.2d 246, 248, 114 USPQ 161, 162
(CCPA 1957); Ex parte Kitamura, 9 USPQ2d 1787, 1788 Footnote [2]
(BPAI 1988). All that is necessary for anticipation is a
reference published or patented more than one year prior to the
date of the application for patent in the United States and which
reference describes the invention claimed by appellants.
Scullard is such a reference.
We have included claims 9 through 12 in our affirmance
of the rejection under 35 USC 102(b) even though appellants have
stated they consider claims 9 and 12 to stand or fall separately.
Nonetheless, each of claims 9 through 12 depend directly on claim
1. Appellants' sole argument for the patentability of claims 9
and 12 is found at pages 14 and 15 of their brief wherein
appellants state:
The patentability of claims 8, 9, and 12
under this rejection are independently
based on upon the same argument
represented immediately above for claims
5 and 6. Each of these claims recites a
particular repeating polymeric unit.
That unit is not shown by Scullard.
We note, however, that claims 9 and 12 require the same repeating
polymeric unit as claim 1 and which polymeric unit is shown by
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