Appeal No. 2000-1559 Page 6
Application No. 07/911,593
element of the claimed invention must be identically shown in a single reference.
Diversitech Corp. v. Century Steps, Inc., 850 F.2d 675, 677, 7 USPQ2d 1315, 1317
(Fed. Cir. 1988). Here, the examiner has not established that Ijaz discloses a virus
"classified in a rotavirus serotype which includes at least one human rotavirus" as
recited in each claim on appeal. Accordingly, the examiner has not established a prima
facie case of anticipation of applicants' claims under 35 U.S.C. § 102(b) based on the
cited Ijaz patent.
In setting forth the statement of rejection, the examiner concludes that "[t]he
bovine rotavirus of Ijaz is classified in a rotavirus serotype which includes human
rotavirus." (Examiner's Answer, sentence bridging pages 6 and 7). That, however, is a
bald conclusion unsupported by facts. Simply stated, in setting forth the statement of
rejection (Answer, pages 6 and 7), the examiner does not provide sound scientific
reasoning or evidence which would support that conclusion. Accordingly, the examiner
has not established a prima facie case of anticipation.
The rejection of claims 5, 6, 8, 9, 11, 12, 19, 21, 22, 24, 29, and 31 under
35 U.S.C. § 102(b) as anticipated by Ijaz is reversed.
Ward
In reviewing the examiner's prior art rejection based on Ward, we have
considered each independent claim separately. The dependent claims included in this
rejection stand or fall with the independent claims from which they depend (Appeal
Brief, section VII. GROUPING OF THE CLAIMS).
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