Appeal No. 2000-1872
Application No. 09/087,746
A- microbes." (Answer, page 3). While the examiner acknowledges that the compositions
of Diamond additionally include a fire retardant and finely ground cellulose, the examiner
concludes that "[t]hese do not impart in effect functionality to Diamonds invention, and
would not do so to the instant invention.“ (Id.). The examiner additionally notes that the
composition described by Diamond is "biodegradable, non-toxic, non-irritating and is safe
to humans, plants and animals . . ." (Id.).
Appellants argue, in pertinent part, that Diamond does not describe "a non-toxic
water soluble colorant sufficient to prevent or minimize the photosynthesis of at least one of
an algae or a weed;" (Brief, page 8) (Emphasis in the original.) but rather includes a
colorant in order "to impart product identification to the cellulose base . . . ." (Id.)
(Emphasis in the original.). Further, appellants urge that the language "consisting
essentially of" does not permit the inclusion of a hydrophobic sorbent material . . . . (Id.).
Having considered the claims, the disclosure of Diamond, and the respective arguments of
the examiner and appellants, we agree with appellants that Diamond fails to anticipate the
claimed composition. Anticipation requires the disclosure, in a single prior art reference,
of each element of the claim under consideration. W.L. Gore & Assoc. v. Garlock, Inc.,
721 F.2d 1540, 1554, 220 USPQ 303, 313 (Fed. Cir. 1983), cert. denied, 469 U.S. 851
(1984). On this record, the examiner has not provided the facts and evidence which would
reasonably support the conclusion reached. We recognize that Diamond would suggest
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