Appeal No. 1999-1854
Application No. 08/633,616
stationary wall ...
After careful review of the Fujii reference in light of the
arguments of record, we agree with Appellants that no such
feature is disclosed by Fujii. To the contrary, in a direct
contradiction of Appellants’ recited stationary wall contact
feature, Fujii discloses at page 4, lines 47-50 the following:
The present invention provides a control
of the charging process of the actuator whereby
either the duration or the voltage of the drive
pulses applied to the electrostatic actuator is
set to a value or controlled such that the
diaphragm does not touch the nozzle electrode
even if the gap length between the diaphragm
and the nozzle electrode is extremely small
(emphasis added).
Further, we find the Examiner’s suggestion (Answer, page
4) as to the inherency of the claimed feature of subsequent
charge application resulting in the diaphragm contacting the
stationary wall to be unfounded. To establish inherency,
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).
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