Appeal No. 2002-0206
Application No. 09/121,725
Claim 7 recites the step of enclosing the oysters in a liquid
impermeable bag prior to exposing the oysters to hydrostatic
pressure (as does Yasushi, see finding of fact #6).
We conclude, as did the examiner, that the process steps
disclosed in Yasushi are identical to those of claims 6 and 7.
The appellants contend that Yasushi does not disclose the
effect of the process, that is, the reduction of bacteria in the
oyster, and therefore Yasushi cannot anticipate claims 6 and 7.
We disagree.
Anticipation under 35 U.S.C. Section 102(e) requires that
"each and every element as set forth in the claim is found, either
expressly or inherently described, in a single prior art
reference." Verdegaal Bros., Inc. v. Union Oil Co., 814 F.2d 628,
631, 2 USPQ2d 1051, 1053 (Fed. Cir. 1987). However, our reviewing
court has held that even if a reference does not set forth every
element of the claim, the reference may still be an anticipatory
reference if the element is inherent in the disclosure. In re
Robertson, 169 F.3d 743, 745, 49 USPQ2d 1949, 1950 (Fed. Cir.
1999).
A result that is inherent, i.e., that inevitably and
necessarily occurs, as in this case, need not be recognized in a
19.1.16, page 19-22, attached hereto.
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