Appeal No. 2002-2273 3
Application No. 09/363,688
Reference is made to appellants’ main and reply briefs (Paper Nos. 14 and 17)
and to the final rejection and examiner’s answer (Paper Nos. 8 and 16) for the
respective positions of appellants and the examiner regarding the merits of these
rejections.
OPINION
Looking first at the anticipation rejection of claim 11, anticipation is established
only when a single prior art reference discloses, expressly or under the principles of
inherency, each and every element of a claimed combination. RCA Corp. v. Applied
Digital Data Sys., Inc., 730 F.2d 1440, 1444, 221 USPQ 385, 388 (Fed. Cir. 1984). In
other words, there must be no difference between the claimed invention and the
reference disclosure, as viewed by a person of ordinary skill in the field of the invention.
Scripps Clinic & Research Found. v. Genentech Inc., 927 F.2d 1565, 1576, 18 USPQ2d
1001, 1010 (Fed. Cir. 1991).
Schellhaas is directed to an apparatus
for generating a pesticidal gas mixture of phosphine gas and air for
fumigating an enclosed environment, e.g.[,] a grain silo, with phosphine.
Air, moisture content adjusted by drying or humidifying, is passed through
a porous bed [14] of aluminum phosphide or magnesium phosphide,
preferably in a throw-a-way cartridge [13]. The resulting mixture of air and
phosphine gas is passed into the space . . . . The cartridge [13] is fitted
directly in sealing relationship between inlet and outlet adaptors to serve
as the gas generator vessel of the apparatus. [Abstract.]
In rejecting claim 11 as being anticipated by Schellhaas, it appears that the
examiner considers elements 13 and/or 14 of Schellhaas as corresponding to the
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