Appeal No. 1998-1660
Application No. 08/108,499
evidence must make clear that the missing descriptive matter
is necessarily present in the thing described in the reference
and would be recognized as such by persons of ordinary skill.
In re Robertson, 169 F.3d 743, 745, 49 USPQ2d 1949, 1950-51
(Fed. Cir. 1999) citing Continental Can Co. v. Monsanto Co.,
948 F.2d 1264, 1268, 20 USPQ2d 1746, 1749 (Fed. Cir. 1991).
“Inherency, however, may not be established by probabilities
or possibilities. The mere fact that a certain thing may
result from a given set of circumstances is not sufficient.”
Id. citing Continental, 948 F.2d at 1269, 20 USPQ2d at 1749.
As correctly asserted by Appellants (Brief, page 16),
Ghandhi describes a crystal growing process in which the
temperature of the melt is maintained constant (within a
tolerance range of plus or minus ½E C) over the duration of
the crystal growing process. In Appellants’ disclosed
crystal growing process, on the other hand, the temperature of
the melt is intentionally varied over time, i.e. the rate of
change of the melt temperature is controlled to reduce the
magnitude of lattice distortions to satisfy the claimed
inequality relationship. In our view, since the crystal
growing processes described by Ghandhi and Appellants are so
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