Appeal No. 2002-2074
Application No. 09/494,965
finding that this embodiment meets, under principles of
inherency, the limitations in the claim requiring the steps of
providing a charge of compressed fluid and rapidly releasing the
charge into the tubular member so that it acts on the projectile
carrier (Sweeney’s cradle 15 and sabot 17) and accelerates the
carrier and the projectile (Sweeney’s ball 13) through the
tubular member. The appellants counter (see pages 6 and 7 in the
main brief and pages 2 and 3 in the reply brief) that the
rejection is unsound because Sweeney does not “explicitly”
disclose these steps. According to the appellants, “Sweeney’s
mere mention of a compressed fluid is not equivalent to
disclosing how the compressed fluid should actually be used to
launch the deterrent ammunition” (reply brief, page 2).
While it is true that Sweeney does not explicitly disclose
charge providing and releasing steps as set forth in claim 54,
this is not dispositive of the anticipation issue at hand. As
indicated above, the law of anticipation allows for the
disclosure of these steps under principles of inherency. Under
these principles, when a reference is silent about an asserted
inherent characteristic, it must be clear that the missing
descriptive matter is necessarily present in the thing described
in the reference, and that it would be so recognized by persons
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