Appeal No. 2000-0345
Application No. 08/419,219
Appellants contend in response, among other things, that the disclosure of
pyrethrins is not a disclosure of the synthetic insecticides specifically listed in claim 8,
and their disclosure by Landsman consequently cannot serve as an anticipatory
disclosure, regardless of the fact that they can also function as insecticides. We agree
that the position of the examiner is hard to uphold on the record before us.
The rejection, as set forth above, suffers from several deficiencies. First, it does
not acknowledge the standard required for a reference to be anticipatory. Moreover, it
does not set forth how the reference reads on each and every limitation of the
independent claim, and does not even allude to many of the limitations contained in the
dependent claims.
In order for a reference to be anticipatory, it must disclose, either explicitly or
implicitly, every element of the claim. See In re King, 801 F.2d 1324, 1326, 231 USPQ
136, 138 (Fed. Cir. 1986). Landsman indeed teaches that pyrethrins may be part of the
insecticidal tape. The reference, however, fails to teach the use of any of the
specifically claimed insect control ingredients, i.e., transfluthrin, prallethrin, vaporthrin
and tefluthrin. Thus, the Landsman reference fails to disclose all of the limitations of
claim 8, and is therefore cannot serve as an anticipatory reference. That conclusion is
supported by the rejection itself, which states that “[t]he efficacy of pyrethrin transfluthrin
and prallethrin insecticides is known.” Such a statement speaks more to the
obviousness of the claimed invention than to anticipation of the claimed invention.
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