Appeal No. 2003-0468 Page 5
Application No. 09/447,752
It is agreed that Bair '815 does not disclose the pressure pulse rise time.
However, the claimed range of between 1 gram/second and 50,000
grams/second is broad and the upper range (50,000 grams/second) certainly
approaches a rectangular wave pattern as disclosed by Bair `815, column 51
[sic, column 3, line 51]. Specifically, if the force was 50.0 grams, and the
pressure pulse rise time was 50,000 grams/second, then the force of 50.0 grams
would be reached in 0.001 seconds, which is a rectangular wave shape. If the
force was 0.03 grams, and the pressure pulse rise time was 50,000
grams/second, then the force of 0.03 grams would be reached in 6 x 10-7
seconds.
With respect to the force of the pumping pulses having a frequency of between 1 Hz
and 200 Hz., the examiner stated "the Bair '815 handpiece would not function
adequately if the pulse did not fall above 1 Hz. The frequency claimed (1 Hz to 200 Hz)
covers almost the entire spectrum of liquefracture."
A prior art reference need not expressly disclose each claimed element in order
to anticipate the claimed invention. See Tyler Refrigeration v. Kysor Indus. Corp., 777
F.2d 687, 689, 227 USPQ 845, 846-847 (Fed. Cir. 1985). Rather, if a claimed element
(or elements) is inherent in a prior art reference, then that element (or elements) is
disclosed for purposes of finding anticipation. See Verdegaal Bros. Inc. v. Union Oil
Co., 814 F.2d 628, 631-33, 2 USPQ2d 1051, 1052-54 (Fed. Cir.), cert. denied, 484 U.S.
827 (1987). It is well-settled that under principles of inherency, 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 of ordinary skill. Continental Can Co. v.
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