Appeal No. 2002-1519 Page 6
Application No. 09/433,344
upon the theory of inherency, the examiner must provide a basis in fact and/or technical
reasoning to reasonably support the determination that the allegedly inherent
characteristic necessarily flows from the teachings of the applied prior art. See Ex parte
Levy, 17 USPQ2d 1461, 1464 (Bd. Patent App. & Int. 1990).
In this case, it is our opinion that the examiner has not established a prima facie
case of anticipation based on inherency. In that regard, the examiner has not provided
any basis in fact and/or technical reasoning to reasonably support the determination
that the limitations set forth in the "whereby" clauses of claims 1 and 4 are inherently
met by Starr. While it may be true that Starr's fluidic device inherently forms vortices,
this does not establish that the limitations set forth in the "whereby" clauses of claims 1
and 4 are inherently met by Starr. Specifically, the examiner has not set forth any basis
in fact and/or technical reasoning as to why Starr's fluidic device would inherently create
oscillation of the liquid jet exiting out of the device and that the oscillation of the liquid
jet stops when entrainment of the fluent material through the control port ceases. In our
view, the fluid flow in Starr's fluidic device only oscillates between outlet ports 13 and 14
when the user so desires by altering the control pressure in controls ports 21 and 22.
Thus, there is no oscillation as is achieved in the appellant's device.
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