Appeal No. 1997-2667
Application No. 07/632,907
This is the second appeal of the same subject matter
previously considered by the merits panel. In the previous
appeal, the merits panel reversed the rejections proposed by
the examiner and made new grounds of rejection. However,
these new grounds of rejection were made by the merits panel
without the benefit of the new arguments and evidence advanced
by appellants in the present appeal. Accordingly, we will
reevaluate the propriety of these rejections repeated by the
examiner in his Answer in view of the new arguments and
evidence presented by appellants in the present appeal.1
The examiner has rejected claims 26, 28, 30 through 38,
43 and 44 under 35 U.S.C. § 102(b) as anticipated by the
disclosure of Niles. Anticipation under Section 102 is
established only if Niles discloses, either expressly or under
the principles of inherency, each and every element of a
claimed invention. See In re Spada, 911 F.2d 705, 708, 15
USPQ2d 1655, 1657 (Fed. Cir. 1990); RCA Corp. v. Applied
Digital Data Sys., Inc., 730 F.2d 1440, 1444, 221 USPQ 385,
388 (Fed. Cir. 1984). However, the examiner has not disputed
1The Bennett 1994 declaration contains additional evidence
which was not presented in the Bennett 1992 declaration.
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