Appeal No. 97-3193
Application 08/467,326
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matured into the Erb patent was filed, we find that the cross hatching used by Erb in
depicting element 37 would have conveyed to one of ordinary skill in the art that element
37 is made of metal material. Although the Rules of Practice no longer include a section
devoted exclusively to drawing conventions, current M.P.E.P.
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§ 608.02, Drawings, indicates that the drawing conventions for cross hatching in effect at
the time the Erb patent was filed continue to the present, thereby bolstering our view that
one of ordinary skill in the art would regard Erb’s element 37 as being made of metal
material. In further support of our finding in this regard, we note that there is nothing in
Erb’s verbal description which would lead the ordinarily skilled artisan to a contrary
conclusion. See National Latex Products Co. v. Sun Rubber Co., 274 F.2d 224, 230,
123 USPQ 279, 283 (6th Cir. 1959) (mold considered to be metal based on cross
hatching of drawings).
On page 6 of the brief, appellants argue, in effect, that since Erb purposefully
discloses nebulizer disk 20 as being composed of metal (see column 4, lines 38-41), if
Erb wanted to disclose other components as being composed of metal he would have
done so. This argument is without merit because, as noted above, a disclosure in the
drawings does not have to be purposeful in order to anticipate the claimed subject matter.
6See the attached copy of 37 CFR § 3.61, Symbols for Draftsmen (revised as of
July 1, 1976), which is representative of the rule for the time period in question.
7Copy attached.
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