Appeal No. 2001-2168
Application No. 09/083,307
In support of patentability, appellant argues that
“there is no disclosure [in the Lentz patent] of using a
filter with a molecular weight cutoff of 120,000
daltons . . .” (main brief, page 7). As far as claim 9 is
concerned, no other limitations are argued as differences
over the Lentz patent.
Admittedly, Lentz does not expressly set forth in haec
verba that any of the membrane filters mentioned in his
patent has a molecular weight cutoff of 120,000 daltons.
However, the claim limitation is met or anticipated if any
of the filters described in the Lentz patent inherently
possesses a cutoff of 120,000 daltons given a set of
appropriate operating conditions.4 See In re Schreiber, 128
F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997), In
re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA
1977), and In re Ludtke, 441 F.2d 660, 664, 169 USPQ 563,
566 (CCPA 1971).
In the present case, appellant’s specification states
on page 4 that a membrane filter having a pore size of 0.03
microns and a thickness of less than 25 microns and
preferably less than 10 microns will provide the desired
cutoff of 120,000 daltons. The Lentz patent discloses a
4 Claim 9 does not specify any operating conditions.
6
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