Appeal No. 1997-1073
Application No. 08/218,540
We have carefully considered the claims, the applied
prior art reference, and the respective positions articulated
by the appellant and the examiner. As a consequence of our
review, we will reverse both the anticipation rejection of
claims 1 through 4 and 9 through 12 and also the obviousness
rejection of claims 5, 6, 13, and 14.
The examiner rejects claims 1 through 4 and 9 through 12
under 35 U.S.C. § 102 as being anticipated by Banu. "It is
axiomatic that anticipation of a claim under §102 can be found
only if the prior art reference discloses every element of the
claim." In re King, 801 F.2d 1324, 1326, 231 USPQ 136, 138
(Fed. Cir. 1986); Lindemann Maschinenfabrik v. American Hoist
and Derrick, 730 F.2d 1452, 1458, 221 USPQ 481, 485 (Fed. Cir.
1984).
Banu relates to a system for obtaining a sample of a fluid.
Banu can be interpreted as including a container with a hollow
vessel therein. However, claim 1 requires a "means to permit
and stop fluid flow from said container into said vessel in at
least three positions substantially along the longitudinal
axis" (emphasis added). Clearly the openings at the upper and
lower ends of the Banu device could satisfy such means for two
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