Appeal No. 2000-2261
Application 08/730,670
probabilities or possibilities since inherency requires a
teaching must be necessarily present in the applied prior art.
Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1269,
20 USPQ2d 1746, 1749 (Fed. Cir. 1991) relying on In re Oelrich,
666 F.2d 578, 581, 212 USPQ 323, 326 (CCPA 1981). These findings
are consistent with a more recent case from our reviewing court,
In re Robertson, 169 F.3d 743, 745, 49 USPQ2d 1949, 1950-51 (Fed.
Cir. 1999).
For similar reasons we reverse the rejection of independent
claims 26 and 30. As noted in the discussion at pages 8 and 9 of
the principal brief on appeal, these claims are respective
apparatus and method claims setting forth essentially similar
subject matter. We must reverse the rejection of independent
claim 27 and corresponding independent claim 30 for the same
reasons as for our reversal of claim 1 according to the Figure 1
showing in Denheyer, since this figure also does not teach the
more specific recitation of the selecting unit operating in the
alternative with a combining unit to generate the "modulating
waveform" required by the analog modulator at the end of each of
these respective claims on appeal.
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